EPA and Corps Define “Waters of The United States”

EPA and the Army Corps of Engineers have promulgated a final rule defining the scope of federal jurisdiction over wetlands and other “waters of the United States” under the Clean Water Act.  Dubbed the “Clean Water Rule” by EPA, the 297-page document was issued to clear up the regulatory uncertainty over the scope of federal jurisdiction resulting from the U.S. Supreme Court’s “significant nexus” 2006 decision in Rapanos v. United States.  Instead, many are claiming it’s a massive power grab by the federal government that muddies the waters further.  The House of Representatives has already voted to block the rule, and the Senate has a bill before it to do the same.  The U.S. Chamber of Commerce, American Farm Bureau Foundation, and other industry groups have vowed to challenge the rule in court.

So what does the rule do?  In a nutshell, it seeks to reduce the number of instances where a case-by-case “significant nexus” analysis is required by better defining what waters are regulated.  Among other things, it defines for the first time tributaries that have a significant connection to downsteam waters, and it includes new distance-based metrics for determining the extent to which jurisdiction reaches nearby waters.  But critics contend the rule is written so that the greater specificity it provides expands jurisdiction even more.  They say that rather than limiting jurisdiction, the use of distance-based metrics makes it possible to extend federal jurisdiction to just about any water anywhere. 

The final rule was issued on May 26, 2015, but has not yet been published in the Federal Register.  It will be effective 60 days after it has been published.  This issue is far from resolved, and a trip back to the U.S. Supreme Court seems inevitable.