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EPA’s Clean Water Rule Defines “Waters of the United States,” Expanding the Scope of the Clean Water Act

on Friday, 4 September 2015 in Dirt Alert: David C. Levy, Editor

The EPA started enforcing the Clean Water Rule: Definition of “Waters of the United States” (the “Rule”) in some states on August 28, 2015. The Clean Water Act (the “Act”) applies to “navigable waters,” which the Act defines as “the waters of the United States, including territorial seas.” The Rule defines “waters of the United States” to expand the types of waters the Clean Water Act affects.

The Rule may affect any property, infrastructure, or facility where water is present or nearby. Operating in waters of the United States without authorization may lead to liability under the Clean Water Act and harsh administrative, civil, or criminal penalties. The maximum civil penalty, for example, is $25,000 per day for each violation.

The Rule (1) expands the waters that are within the scope of the Act to include tributaries and adjacent waters, (2) identifies waters that are subject to a case-by-case determination, and (3) codifies waters previously excluded from the Act. Waters that are within the scope of the Act are traditional navigable waters, interstate waters, territorial seas, and impoundments of jurisdictional waters. Tributaries are also waters of the United States if they are characterized by the presence of physical indicators of flow—bed and banks and ordinary high water mark—and if they contribute to traditional navigable waters, interstate waters, or territorial seas. Adjacent waters are also within the scope of the Act. Adjacent waters are those bordering, contiguous, or neighboring waters of the United States, including those separated by natural or artificial barriers.

Waters subject to a case-by-case analysis are those that have a significant nexus to waters of the United States. Waters have a significant nexus if they significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas. The Rule identifies Prairie potholes, Carolina and Delmarva bays, Pocosins, Western vernal pools, and Texas coastal prairie wetlands as five examples of such waters.

Exclusions from the Act include prior converted cropland, artificial features created in dry land, such as swimming pools, and waste treatment and stormwater control systems, such as detention basins. The Rule also excludes groundwater, puddles, and certain ditches.

The Rule is controversial. Twenty-seven states (Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming) have filed judicial challenges to the Rule, alleging, among other things, that the Rule violates the U.S. Constitution by encroaching on states’ rights. On August 27, a federal judge in North Dakota granted a request by Colorado and several other states for a temporary injunction barring enforcement of the Rule. The parties are now debating whether the injunction applies nationally or only in the states that are party to the lawsuit. At a minimum, the injunction applies to Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming. The EPA began enforcing the Rule in all other states on August 28, 2015.

There are also legislative challenges to the Rule. Senate Bill 1140 requires the EPA and the Army Corps of Engineers to withdraw and rework the Rule. The House counterpart, House Resolution 1732, passed the House in May. The White House indicated the President will veto these bills. Less direct challenges include congressional efforts to defund the Rule.

We will continue to monitor the status of the Rule, and if you have any questions, please contact us. A copy of the Rule is available here.

Anthony D. Todero

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