United States: U.S. Government Proposes Controversial Rulemaking Regarding The Clean Water Act

Last Updated: April 7 2014
Article by Ronald J. Tenpas, Ted B. Bosquez IV and Daniel Carmeli

The proposed rule offers a definition of "waters of the United States" that expands the Clean Water Act's jurisdiction.

On March 25, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively, the Agencies) released a highly anticipated proposed rulemaking (Proposed Rule) that seeks to set the jurisdictional scope of the Clean Water Act and address the aftermath of several high-profile, but confusing, court rulings.1 In doing so, the Agencies propose to expand the Clean Water Act's reach by extending it to various smaller-sized waters and to areas where waters may flow infrequently. Because regular discharges to such jurisdictional waters must be permitted under the Clean Water Act, and many construction projects require permits because of dredge and fill activities, the Agencies' proposal raises the specter of increased permitting and mitigation costs, reduced project flexibility, and enhanced enforcement exposure for the regulated community.

The Struggle to Define the Scope of the Clean Water Act

The Clean Water Act's jurisdiction extends to all navigable waters, defined as "waters of the United States, including the territorial seas."2 The current regulations define "waters of the United States" to include traditional navigable waters; interstate waters; all other waters that could affect interstate or foreign commerce; impoundments of waters of the United States; tributaries; the territorial seas; and adjacent wetlands.3

In a number of rulings, federal courts have attempted to refine the boundaries of jurisdiction under the Clean Water Act and give further practical content to the terms, but the rulings have caused confusion and uncertainty for regulators and the regulated community. Most notably, the U.S. Supreme Court issued a divided opinion in Rapanos v. United States.4 In Rapanos, a four-Justice plurality found that "waters of the United States" covered "relatively permanent, standing or continuously flowing bodies of water" that are connected to traditional navigable waters and wetlands with continuous surface connection to such bodies.5 Justice Anthony Kennedy, in a concurring opinion, disagreed with the plurality's standard and advanced a standard that would involve case-by-case review in many circumstances, with waters being "jurisdictional" if they had a "significant nexus" to other jurisdictional waters, such as between a wetland and a neighboring navigable water.6

In the aftermath of Rapanos, the lower federal courts struggled to make sense of the ruling. Because no single opinion collected a majority of the Justice's votes, the lower federal courts offered contradictory conclusions regarding the controlling test to establish jurisdiction under Rapanos. The Supreme Court, however, denied a number of petitions for writ of certiorari to address the uncertainty. The Agencies attempted to address the uncertainty administratively by issuing guidance memoranda and employing a case-by-case approach to jurisdictional determinations. These determinations sometimes required the Agencies to build extensive administrative records to support their determinations, with associated time and costs for the regulated community to navigate the process. Those efforts, however, failed to definitively resolve the post-Rapanos uncertainty regarding the Clean Water Act's scope.

In the U.S. Congress, a number of efforts were made to amend the Clean Water Act to clarify its jurisdiction, but those legislative efforts also failed.7 The Agencies contemplated issuing additional guidance as a further step. The draft guidance, however, was not issued because the Agencies faced opposition from stakeholders on the use of guidance documents, as opposed to formal rulemaking, to address the issue. Likewise, federal court rulings pressed the Agencies on their reliance of interpretative guidance in lieu of rulemaking.8

Proposed Rule

The Proposed Rule defines all tributaries and waters adjacent to bodies otherwise classified as waters of the United States as jurisdictional, regardless of their size, flow, type, permanence, or physical connection to actual waters of the United States (i.e., traditional navigable waters, interstate waters, territorial seas, and impoundments of waters of the United States). Notably, under the Proposed Rule, regulated tributaries would include any body of water as long as its water eventually drains into waters of the United States, including small, intermittent, or ephemeral waters; those that are man-made or man-altered; and those broken by man-made or natural obstacles. Moreover, all waters (not just wetlands, as the rules currently provide) adjacent to waters of the United States would be jurisdictional. Put another way, such tributary and adjacent waters would be categorically jurisdictional and deemed to always have a significant nexus to waters of the United States.

By contrast, the following waters would be categorically excluded from jurisdiction: wastewater treatment systems and converted cropland, along with new exclusions for upland ditches with less than perennial flow; ditches that do not contribute flow to waters of the United States; irrigation systems; artificial lakes, ponds, and pools; ornamental waters; depressions; groundwater; gullies; rills; and nonwetland swales.

Under the proposal, any water not categorically included or excluded (per the above) would continue to be subject to the existing case-by-case "significant nexus" determinations. Thus, any water not categorically determined would be subject to federal jurisdiction if it had a more than speculative or insubstantial effect on the chemical, physical, or biological integrity of bodies otherwise classified as waters of the United States. For example, individual water bodies that, in and of themselves, would not have a significant impact on a jurisdictional water could be grouped with other similarly situated water bodies whose overall collective impact could result in the entire group being designated as jurisdictional.

Impact to the Regulated Community

The Proposed Rule, if promulgated, could have far-reaching effects across all types of industries. For example, expanded jurisdiction could hinder the development of pipeline assets to transport natural gas from the well head to the consumer. Midstream oil and gas projects, which are already facing a host of regulatory challenges, could see their permitting burdens expanded. For such projects, the permit approvals require identification of various sensitive resources, such as cultural heritage sites and endangered habitats, and require that the proposed project plans reduce impact to those resources, often at the cost of economic and technical efficiency. The resulting environmental impacts must then be mitigated either through commensurate fees or actual restoration. Thus, each additional crossing of a water body declared jurisdictional under the Proposed Rule may present an additional set of challenges that may result in an additional potential rerouting of the project and negatively impact the schedule or budget.

More broadly, the Proposed Rule presents the potential for expanded challenges to many industries that involve construction and development of facilities, ranging from real estate to energy, infrastructure, and manufacturing. For large (and sometimes small) projects, it may take years to obtain the necessary authorizations and approvals, ranging from local zoning permits to coastal zone management approvals. Any preconstruction dredging requires a permit under section 404 of the Clean Water Act. Under the Proposed Rule, an intermittent and seemingly isolated stream could, in the future, trigger a section 404 permit requirement. The jurisdictional expansion could also create a backlog to an already lengthy application process, thus chilling new development by increasing project delays and costs.

Public Comment Period

Interested parties can comment on any aspect of the Proposed Rule, and the Agencies have identified a number of issues on which they specifically invite comment, including the following:

  • Alternate approaches to determining whether "other waters" are similarly situated
  • Alternate approaches to determining whether "other waters" have a significant nexus with waters of the United States
  • Identification of "other waters" subcategories that may be universally deemed to have a significant nexus or no significant nexus to waters of the United States
  • Identification of "other waters" subcategories that may require a case-by-case "significant nexus" determination
  • More efficient technologies and approaches to determine which waters are subject to jurisdiction
  • Ways to clarify the definition, extent, and aquatic features of tributaries as well as their distinguishing features from gullies, rills, and nonwetland swales
  • Appropriate flow level for upland ditch exclusion
  • Alternate connection types to identify "adjacent waters"
  • The need for any more specificity as to when a water is deemed located in the floodplain of a water of the United States
  • The definition of "neighboring," as used to define "adjacent water"

The Agencies also seek information and data related to the following:

  • The aquatic resource, implementation, and economic implications of the proposed definition
  • Peer-reviewed literature to aid in review of the report
  • Distinguishing features between jurisdictional and nonjurisdictional "other waters"

The public comment period will extend for 90 days after the publication of the Proposed Rule in the Federal Register, which should occur soon. Companies with substantial operating and construction activities that regularly bring them in contact with water bodies, even intermittent or small bodies, should review the proposal carefully for potential impacts on their future operations and consider submitting comments accordingly.

Footnotes

1. View the Proposed Rule here

2. 33 U.S.C. § 1362(7). 

3. 33 C.F.R. § 328.3; 40 C.F.R. § 122.2.

4. 547 U.S. 715 (2006).

5. Id. at 739, 742.

6. Id. at 780 (Kennedy, J., concurring).

7. See, e.g., Clean Water Authority Restoration Act of 2003, S. 473, 108th Cong. (2003); Clean Water Authority Restoration Act of 2005, H.R. 1356, 109th Cong. (2005); Clean Water Restoration Act, S. 787, sec. 25, 111th Cong. (2009).

8..  See, e.g.,Nat'l Mining Ass'n v. Jackson, 880 F. Supp. 2d 119 (D. D.C. 2012).

This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions