On May 2, the Environmental Protection Agency (EPA) and Army Corps of Engineers formally proposed new guidelines for determining which waters and wetlands are “waters of the United States” and are, therefore, protected under the Clean Water Act (CWA).
According to the notice, jointly published in the Federal Register, the new guidelines will provide clarity and predictability regarding the scope of the “waters of the United States.” The agencies saw this as needed since the waters have become somewhat murky (terrible pun, I know…) after the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States in 2006.
In SWANCC, the Supreme Court held that intrastate, non-navigable, isolated waters could not be protected as “waters of the US” under the CWA based solely on the presence of migratory birds. In Rapanos, the Supreme Court was split. Justice Scalia’s plurality opinion stated that “waters of the US” were “relatively permanent, standing or flowing bodies of water” and indicated that this does not necessarily exclude from the CWA’s jurisdiction seasonal and drought-affected streams, rivers or lakes. Justice Kennedy’s concurrence, however, opined that jurisdictional waters included those with a “significant nexus” to a traditional navigable waterway, stating that such a nexus would exist if the waterway “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of a navigable water. EPA’s position is that a water is protected when it meets either standard.
The proposed new guidelines recognize the following waters as being protected by the CWA:
• traditional navigable waterways
• interstate waters
• wetlands adjacent to either traditional navigable waters or interstate waters
• non-navigable tributaries to traditional navigable waters that are relatively permanent,
meaning they contain water at least seasonally
• wetlands that directly abut relatively permanent waters
In addition, if a fact-specific analysis shows that the water has a “significant nexus” to a traditional navigable waterway or interstate water (as required by Kennedy’s opinion in Rapanos), then the following waters are also protected:
• tributaries to traditional navigable waters or interstate waters
• wetlands adjacent to jurisdictional tributaries to traditional navigable waters or interstate
• waters that fall under the “other waters” category of the regulations
EPA makes clear that the existing agricultural exemptions under the CWA are unchanged by the proposed new guidance. The public has been given 60 days (until July 1st) to comment on the proposed guidelines. Once final, the guidelines will supersede the current guidelines.