Last year, the Environmental Protection Agency and the United States Army Corps of Engineers (Corps) published a draft rule defining waters of the United States. The agencies finalized the rule on May 27, 2015, and it will take effect 60 days after it is published.
The Federal Clean Water Act applies to all waters of the United States. The Clean Water Act includes permitting requirements for discharges into surface waters, identifying and cleaning up polluted (i.e., impaired) waters, and is the basis for the Corps’ wetlands permitting program, which also includes an evaluation under the Endangered Species Act. Many people know these programs by their acronyms and similar jargon: NPDES permits, TMDLs, BMAPs, and 404 permits are all based on the definition of waters of the U.S., and these programs are enforced by a broad array of state and federal agencies.
The U.S. Supreme Court attempted to define what constitutes a water of the U.S. in two court cases, but these cases created lingering uncertainty. The new rule attempts to fill the void. In addition to covering waters that most people would readily accept as waters of the U.S., such as waters that can be used in interstate commerce, the rule covers tributaries to such waters, waters adjacent to the interstate commerce waters, and waters with a significant nexus to the interstate commerce waters.
Controversially, the rule covers, as tributaries, man-made ditches with perennial flow. It also contains a very broad definition of waters with a significant nexus to interstate commerce waters. The rule says a significant nexus includes all waters within the 100-year flood plain of an interstate commerce water that can affect the biological, chemical, or physical integrity of the interstate commerce water.
A striking aspect of the new rule is the significant number of changes from the draft rule published in 2014. Regulated entities can reasonably express concern that the impact and operation of the new rule is sufficiently different from the draft rule that the agencies should have opened the new rule for additional commentary.
The new rule appears to work a significant expansion of the Clean Water Act, compared to the direction of the Supreme Court in their previous decisions. As indicated, the significant nexus test’s application to all waters within the 100-year flood plain of an interstate commerce water reaches quite far, particularly in flat states like Florida that have large flood plains. Similarly, including ditches as tributaries also appears to sweep up a number of waters.
The new rule is certain to be challenged and faces an uncertain legal future.
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The author of this alert, Greg Munson, is the former general counsel and deputy secretary for water policy at the Florida Department of Environmental Protection. He is now a shareholder practicing environmental law at Gunster and working in Tallahassee, Florida.
