The EPA and the U.S. Army Corps of Engineers today released a new rule attempting to clarify the scope of jurisdictional "waters of the United States" under the Clean Water Act. Work that takes place in waters of the United States can require a dredge and fill permit under Section 404 of the CWA.
The rule has attracted intense attention and partisan hyperbole. House Speaker John Boehner stated in a press release that “The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs.” Environmental groups praised the rule.
The crux of the rule is how it defines which tributaries and adjacent waterbodies have a significant nexus to clearly jurisdictional navigable waters such that they become regulated waters of the United States.
"Tributaries" are deemed jurisdictional when they "are characterized by the presence of physical indicators of flow – bed and banks and ordinary high water mark – and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas."
"Adjacent waters," including wetlands, ponds and lakes, are also deemed jurisdictional. In order to qualify as an "adjacent water," the waterbody must be bordering, contiguous, or neighboring to a jurisdictional water. A waterbody is considered "neighboring" in three circumstances:
(1) Waters located in whole or in part within 100 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment of a jurisdictional water, or a tributary, as defined in the rule.
(2) Waters located in whole or in part in the 100-year floodplain and that are within 1,500 feet of the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, an impoundment, or a tributary, as defined in the rule (“floodplain waters”).
(3) Waters located in whole or in part within 1,500 feet of the high tide line of a traditional navigable water or the territorial seas and waters located within 1,500 feet of the ordinary high water mark of the Great Lakes.
The rule is intended to create categories of waterbodies that meet the significant nexus test articulated by Justice Kennedy in Rapanos v. United States, 547 U.S. 715 (2006). The criteria in the rule were developed based on a peer-reviewed study titled "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence."