New EPA and USACE Regulations Revise Definition of "Waters of the United States"

By Mr. Ken Bogdan and Mr. Al Herson

Under Clean Water Act (CWA) Section 404, the US Army Corps of Engineers (USACE) must issue a permit for discharges of dredged or fill material into "waters the United States" (WOTUS). On June 29, 2015, the Environmental Protection Agency (EPA) and USACE published its final rule defining "waters of the United States" for purposes of Section 404 and other sections of the CWA. The highly controversial regulations were summarized in the August Edition of California Environmental Law Reporter, and became effective on August 28, 2015. This article reviews the regulations' historical background, contents, likely regulatory effects, and potential legal challenges. This article appears in the Oct. 2015 issue of California Environmental Law Reporter.

Excerpt:

Section 404 of the Clean Water Act and Waters of the United States. The Clean Water Act authorizes EPA to regulate water quality through the restriction of pollution discharges. The authority of EPA under the Clean Water Act to regulate all "pollution activities" affecting the waters of the United States is modified by Section 404 where the Corps retains the principal responsibility to regulate discharges of dredged or fill material into waters of the United States. Under the Clean Water Act, however, EPA has a specific oversight role over the USACE's authority.

The Clean Water Act's term "waters of the United States" was expansively defined in EPA's and the Corps' previous regulations to include all waters currently used, used in the past, or susceptible to use in interstate or foreign commerce, or that "could affect" interstate or foreign commerce. In general, federal regulatory authority over the states and private property is derived from the interstate commerce clause of the U.S. Constitution. In addition to traditional navigable waters, "waters of the United States" was defined to include all "other waters," such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and wetlands adjacent to any waters of the United States (other than waters that are themselves wetlands) the use, degradation, or destruction of which could affect interstate or foreign commerce. The final rule makes major changes to these controversial elements of the waters of the United States definition.

SWANCC and Rapanos. The final rule attempts to address the challenges associated with interpreting the previous regulatory definition as well as resolve years of legal controversy about the definition of certain waters, including wetlands, subject to CWA regulation. In 2001, the United States Supreme Court set off a round of controversy and uncertainty about the waters and wetlands regulated by the Section 404 program in its landmark SWANCC ruling. Further confusion about the definition of jurisdictional waters and wetlands was created by the Supreme Court's Rapanos decision in 2006.

In SWANCC the Supreme Court held that the USACE's jurisdiction under the CWA does not extend to intrastate, isolated waters and wetlands where the sole basis for interstate commerce connection was through the wetlands use as habitat for migratory birds. The SWANCC decision created great uncertainty about which nonnavigable wetlands and waters continued to be subject to Section 404 jurisdiction.

In the consolidated cases, Rapanos v. United States and Carabell v. United States (jointly referred to as Rapanos), the Supreme Court considered whether the waters of the US extend to wetlands that are not adjacent to, or even close to, waters that are navigable in fact. The Supreme Court issued five separate opinions with no single majority opinion, thus creating considerable confusion in how to apply the case. Justice Kennedy's concurring opinion to Justice Scalia's more conservative plurality opinion was generally the most influential in subsequent court decisions and regulatory practice. His plurality opinion held that CWA jurisdiction applies to traditional navigable waters (e.g., rivers and lakes) and all other waters (including intermittent waters) with a "significant nexus" to a traditional navigable water. Many commentators criticized the "significant nexus" test as requiring costly and time-consuming case-by-case determinations of CWA jurisdiction, rather than creating easy-to-apply categorical rules.

EPA and USACE issued guidance on applying SWANCC in 2003 and on applying Rapanos in 2007. The final rule supersedes this guidance.

In 2011, the EPA and USACE again issued controversial draft guidance for determining whether a waterway, waterbody, or wetland is considered a water of the US. The agencies expected that the draft guidance would increase the extent of jurisdictional waters compared to then-existing guidance. Proposed final guidance, which was not publicly available, was sent to the Office of Management and Budget's Office of Informational and Regulatory Affairs (OIRA) in February 2012. However, in September 2013 EPA withdrew the draft guidance, in conjunction with announcing the Connectivity Report discussed below. projects.

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Ken Bogdan is Senior Staff Counsel with the California Department of Water Resources. Al Herson FAICP is an environmental attorney who is Of Counsel with the Sohagi Law Group, where he represents public agency clients on CEQA, environmental and land use law matters. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the authors' current or former employers.

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