'Waters of the U.S.' Rule Still Subject to Nationwide Stay, For Now

Would you consider this a "Water of the United States" subject to the Clean Water Act?

Well think again, because under a new rule, even a dry streambed or channel could be considered a "Water of the U.S." and thus subject to the Clean Water Act. This broad definition could have a significant impact on many different industries including real estate, construction, manufacturing, mining, energy, agriculture and others.

The good news is that the Sixth Circuit issued a nationwide stay of this rule that was poised to broadly increase the government's jurisdiction and regulation of waters and wetlands. The stay will likely remain in place during the pendency of the Sixth Circuit lawsuit, which is currently mired in a battle over jurisdiction.

Background

On May 27, 2015, the Environmental Protection Agency and the U.S. Army Corps of Engineers released a final rule broadly defining "waters of the United States." This is a crucial term because it determines which waters are governed by the Clean Water Act, and thus subject to the Act's permitting requirements. This new definition encompasses many non-navigable waters and tributaries that flow only occasionally. If allowed to take effect, this defining rule will significantly impact numerous industries by increasing permitting requirements, resulting in greater expense and delays.

Tributaries

One major issue with the new rule is its definition of "tributaries," which are automatically "waters of the United States," i.e., jurisdictional waters, under the rule. "Tributaries" are defined as any landscape feature with a bed, bank, and ordinary high water mark that contributes flow directly or indirectly to a navigable water, interstate water, or territorial sea. Whether the origin of the water is natural, man-altered, or manmade does not matter. It likewise does not matter if there are natural or manmade breaks, such as bridges, pipes, or boulder fields, so long as the bed, bank, and high water mark can be identified upstream from the break. This means that ditches and land that are dry most of the year could be interpreted to meet the definition of tributary and be subject to the Clean Water Act.

Other Waters and the Significant Nexus Test

Under the new rule, waters that are not per se jurisdictional are considered "other waters" and will undergo a case-by-case analysis to determine whether they qualify as a "water of the United States." Such "other waters" may be regulated if the water itself, or when...