On May 27, 2015, the EPA and the Army Corps of Engineers issued a final Rule defining “waters of the United States” (“WUS”) for purposes of the federal Clean Water Act. Click here for the final Rule.
The Rule provides needed clarity to the definition of WUS, whose coverage has been made muddy by a trio of recent Supreme Court cases, culminating in the plurality opinion in Rapanos v. United States, 547 US 715 (2006). The bottom line for practitioners and for their clients is that the EPA has established some bright line tests for what are and are not considered WUS, but still leaves it to the Army Corps, EPA and the States to determine on a case by case basis the close calls. Call it clarity with a large asterisk.
NOTE that the Rule and Preamble are more than 250 pages and defy easy summarization. This blog article highlights the key points one needs to know about the significance of the Rule, but a close reading of the Rule is necessary for anyone attempting to make decisions or give advice regarding its content.
A. The Rule clarifies that the following bodies of water are jurisdictional WUS by rule:
1. traditional navigable waters
2. interstate waters
3. territorial seas
4. impoundments of jurisdictional waters
6. adjacent waters
The Rule provides helpful details on the definition of these terms in order to eliminate ambiguity present in the proposed rule.
B. The Rule categorically excludes the following waters from being classified as WUS:
1. already exempted waters like agricultural drainage and previously created farmlands
2. groundwater, about which there had been some dispute
C. The Rule provides that all other waters are to be evaluated on a case by case basis to determine if they meet the “significant nexus” test. “Significant nexus” is essentially defined as it was by J. Kennedy in his concurrence in Rapanos: whether a water has the potential to impact the “chemical, physical and biological integrity of [jurisdictional waters]”. Where the connection is “speculative or insubstantial” there is no significant nexus.
In order to narrow the scope of waters that will need to undergo a case by case analysis, the Rule sets forth some bright line tests and guidelines.
The purpose of the Rule was to attempt to bring clarity to this decidedly murky area of law for the benefit of farmers, developers, landowners and a myriad of other parties affected by the definition of the term WUS. The Rule largely accomplishes its purpose, although it still leaves a number of situations to case by case determination. Hopefully the EPA and the Army Corps will issue guidance or further rules to narrow the universe of situations in which a case by case determination is necessary. Whether the Rule went too far or not far enough is in the eye of the beholder and will be inevitably decided by the courts.
Kenneth A. Reich, Esq.
*This blog article does not constitute and should not be interpreted as legal advice related to a specific issue arising under or impacted by the Rule. Readers are cautioned to consult a lawyer with significant experience in the field for specific legal advice regarding the coverage of the Rule.