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

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...