EPA Announces Final Rule Defining “Waters of the U.S.” under Clean Water Act

On June 27, 2015, the Environmental Protection Agency (EPA) published the final version of a long-anticipated rule defining the scope of the agency’s power to regulate waters under the Clean Water Act. The rule defines what constitutes a “water of the United States” for purposes of regulation under the Clean Water Act. The publication finalizes a multi-year rule-making process of draft proposals and public comments.

The Federal Water Pollution Control Act Amendments of 1972, commonly known as the “Clean Water Act,” allows the EPA to regulate wetlands, lakes, streams, rivers, and other “waters of the United States.” The Act requires that parties obtain a permit for the discharge of any substance into “waters of the United States.” The vagueness of the term “waters of the United States” has been the subject of significant litigation concerning the scope of waters that fall within the EPA and Army Corps of Engineer’s jurisdiction under the Clean Water Act.

Two Supreme Court cases interpreting the definition of “waters of the United States” added to the confusion. In 2001, the Court ruled in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers that the Army Corps of Engineers exceeded its jurisdiction under the Clean Water Act by interpreting the term “waters of the United States” to include isolated, intrastate, non-navigable waters. In 2006, in Rapanos v. United States, where all nine justices agreed that the term “waters of the United States” includes some bodies of water that are not navigable. However, the ruling was a plurality, meaning that there was no majority ruling definitively defining what qualifies as a water of the United States and what does not. The EPA says that the newly final rule does just that.

According to the EPA press release announcing the final rule, the Supreme Court decisions “threw protections into question for 60 percent of our nation’s streams and millions of acres of wetlands. The new rule states explicitly which types of bodies of water are ‘waters of the United States’ and which are not. Using the latest science and technology, this rule clears up the confusion…about which waters to protect.” Under the Rule, EPA has attempted to establish a bright-line test for determining which bodies of water have a hydrological connection to larger water systems. If a hydrological connection is found, under the rule, the EPA has jurisdiction over those waters.

Critics of the new rule say it represents an expansion of the EPA’s authority and could allow the EPA to require private landowners, especially farmers, to obtain permits or environmental studies for temporary bodies of water like seasonal ditches used for irrigation or even large puddles produced during a rainstorm. Supporters of the new rule say landowners do not need to worry about small and temporary water sources because if a body of water does not flow to a major water system or body of water, the EPA did not and still does not have jurisdiction over it.

The EPA stated when it announced the final rule that no new regulations are being added and that this rule is only a clarification of existing law. However, many land users are skeptical of this claim and believe that the rule not only significantly expands the reach of the Clean Water Act, but also raises more questions about which waters are subject to Clean Water Act jurisdiction than it answers. As of the date of this posting, 22 states have filed suit challenging the rule and numerous trade and agricultural associations have stated an intent to join the challenges.
Unless the pending challenges result in a stay of the rule’s implementation, the rule becomes effective on August 28, 2015. To read the full rule, see: https://www.federalregister.gov/articles/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states