On 25 March 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) released a joint proposed rule defining the jurisdictional reach of the Clean Water Act (CWA). The agencies also simultaneously issued an immediately effective interpretive rule to exempt a list of discrete agricultural conservation practices from CWA regulation under 33 U.S.C. § 1344(f)(1)(A). Federal regulatory authority under the CWA is limited to “navigable waters,” defined as “waters of the United States, including the territorial seas.” The proposed rule, if finalized, will offer a long-awaited update to the regulatory definition of jurisdictional “waters of the United States” — in particular, addressing when discharges of dredged and fill material will constitute discharges to such waters requiring a permit issued by the Corps. However, as described further below, it seems unlikely that a final rule modeled on this proposal would bring the clarity for regulated entities promised by the government.
The scope of CWA jurisdiction has been in some disarray since the Supreme Court’s 2006 decision in Rapanos v. United States. At that point, the relevant CWA regulations specified that “waters of the United States” categorically included tributaries to navigable waters and wetlands adjacent to tributaries, without providing a definition of “tributary” or a detailed explanation of the term “adjacent,” and without addressing the status of waters that are not direct tributaries to navigable waters. See 33 C.F.R. § 328.3; 40 C.F.R. § 122.2. This incomplete regulatory definition left the jurisdictional status of any non-navigable water and many wetlands uncertain. In Rapanos, a plurality of four justices endorsed a narrow reading of “waters of the United States” as including only “relatively permanent, standing or flowing bodies of water,” as opposed to “channels containing merely intermittent or ephemeral flow,” based on the plain meaning of the word “waters.” Meanwhile, Justice Kennedy, writing in concurrence, subscribed to a broader but less definitive interpretation of “waters of the United States,” centering on whether the water or wetland in question has a “significant nexus” to a traditional navigable water in that it “significantly affect[s] the chemical, physical, and biological integrity” of that downstream water, either alone or in combination with similarly situated waters. Subsequent enforcement of the CWA has rested on a case-by-case analysis of whether the water in question satisfies either of these two tests.
The centerpiece of this proposed rule is a new definition of “waters of the United States” as categorically including two types of waters — (1) tributaries to traditional navigable waters, and (2) wetlands and waters adjacent to such tributaries and navigable waters — through a regulatory determination that would replace the existing case-specific jurisdictional determination process. A final rule in line with this proposal can be expected to facilitate more expansive administrative and judicial enforcement of the CWA (including citizen suits under 33 U.S.C. § 1365(a)(1)).
In general, this proposal would codify an extremely broad definition of “waters of the United States,” but without necessarily shedding light on where the line between jurisdictional waters and non-jurisdictional waters and other landscape features lies. For example, the term “tributary” would, according to the proposed rule, include any area with a bed, banks, and ordinary high water mark, regardless of how often water can be found there — a definition that is both difficult to square with the plain meaning of “waters” as outlined by the plurality in Rapanos and potentially impossible to apply in practice for a landowner or potential purchaser of property who may lack the extensive historical knowledge necessary to know whether any area of the property has on occasion contained water and should therefore be examined for the relevant physical features. Although the proposal ostensibly excludes “gullies, rills, and non-wetland swales” from this definition, EPA and the Corps have solicited comment on how to differentiate those features from jurisdictional tributaries, highlighting the difficulty of drawing any clear line between the two categories.
A similar issue arises with respect to “other waters” not categorically designated as jurisdictional. EPA and the Corps propose to assert jurisdiction over “other waters” based on a case-by-case determination of whether a water or wetland in that category has a “significant nexus” to a jurisdictional water, which under the proposed regulation means that, “either alone or in combination with other similarly situated waters in the region,” it “significantly affects the chemical, physical, or biological integrity of a [jurisdictional] water” in a way that is “more than speculative or insubstantial.” Among other ambiguous aspects of this analysis, which waters should be considered “similarly situated” is open to interpretation; it is a question that EPA has flagged for comment, but the proposed rule currently offers only the vague explanation that “similarly situated” waters are those that “perform similar functions and are located sufficiently close together or sufficiently close to a ‘water of the United States’ so that they can be evaluated as a single landscape unit.” If such ambiguities persist in the final regulation, the government would receive considerable deference in determining whether “other waters” are jurisdictional as long as its approach is not “plainly erroneous or inconsistent with the regulation,” Auer v. Robbins — potentially opening the door to EPA enforcement even where a regulated party has made a reasonable attempt to comply with unclear regulations. Even where an entity is able to discern the contours of the required analysis, conducting the equivalent of a watershed study to determine whether a given water or wetland is jurisdictional could be difficult, costly, and time consuming, yet — with no guidance as to how to determine whether the effects of the aggregated waters is “more than speculative or insubstantial” — ultimately inconclusive as to its jurisdictional status.
All told, this proposal offers the government an important tool to facilitate its CWA enforcement efforts, but its benefits to the regulated community are less evident. There are a number of aspects of the proposed rule that will require significant development if the resulting regulations are not to create effectively unbounded regulatory authority for EPA and the Corps. The government is accepting comment on the proposal for 90 days following the date of publication in the Federal Register.