The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers recently released a proposed rule on the definition of "waters of the United States" under the Clean Water Act. If enacted, the rule could create significant new hurdles for real estate development projects that are near streams or wetlands by effectively removing permitting authority from state agencies and establishing federal oversight by the EPA and the Corps.
The proposed rule, which is available at this link, seeks to clarify the considerable confusion resulting from the U.S. Supreme Court's decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006), both of which require the Corps to evaluate Clean Water Act jurisdiction on a case-by-case basis. The agencies propose to define "waters of the United States" to include, by rule:
- traditional navigable waters;
- interstate waters, including interstate wetlands;
- territorial seas;
- impoundments of a traditional navigable water, interstate water, the territorial seas, or a tributary;
- tributaries of a traditional navigable water, interstate water, the territorial seas, or impoundment; and
- adjacent waters, including adjacent wetlands.
The proposed "adjacent waters" category would replace the jurisdictional category of "adjacent wetlands." This revision would make "water bodies such as ponds and oxbow lakes, as well as wetlands, adjacent to jurisdictional waters . . . 'waters of the United States.'" The proposed rule defines adjacent as "bordering, contiguous or neighboring" and includes, for the first time, a definition of "neighboring": "waters located within the riparian area or floodplain of a water identified in . . . (1) through (5) [above], or waters with a confined surface or shallow subsurface hydrologic connection to such a jurisdictional water."
Other waters could be determined to be "waters of the United States" through a case-by-case specific showing that, either alone or in combination with similarly situated "other waters" in the region, they have a "significant nexus" to traditional navigable waters, interstate waters, or the territorial seas. The proposed definition of "significant nexus" is that set forth by Justice Kennedy in Rapanos: waters with a significant nexus must significantly affect the chemical, physical, or biological integrity of a downstream navigable water, and the requisite nexus must be more than "speculative or insubstantial."
Under the "other waters" rubric, these agencies propose to include all tributaries (as defined in the proposed rule) in a watershed as "waters of the United States." The agencies view tributaries as having a significant nexus alone or in combination with other tributaries because they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas. The proposed rule plans to make ephemeral streams jurisdictional because they "are essential components of the tributary network and have important effects on the chemical, physical, and biological integrity of [waters listed in (1)-(3), above], contributing many of the same functions downstream as larger streams. When their functional contributions to the chemical, physical, and biological conditions of downstream waters are considered at a watershed scale, the scientific evidence supports a legal determination that they meet the 'significant nexus standard.'"
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