Posts Tagged ‘Clean Water Act Jurisdiction’


The Clean Water Act (CWA) was passed in 1972 to protect and remediate America’s waters. While the country has made great strides toward these goals in the years since the CWA’s enactment, one-third of America’s lakes, rivers, and coastal waters still remain unsafe for fishing and swimming. The federal government intends to increase the effectiveness of the CWA by clarifying its scope and expanding its application.

On April 21, 2014, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers jointly issued a proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act.” The rule, which will define the scope of waters protected under the CWA, is meant to clarify the agencies’ regulatory jurisdiction for streams and wetlands under the CWA. The rule could expand EPA’s and the Corps’s jurisdiction, subjecting more projects and activities to the CWA’s permitting requirements for discharges, pollutants, and fill materials. In more clearly defining “waters of the United States,” the agencies hope to alleviate some of the confusion over the CWA’s reach created by the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) 531 U.S. 159 and Rapanos v. United States (2006) 547 U.S. 715.

The proposed rule clarifies that the CWA protects most seasonal and rain-dependent streams, and wetlands near rivers and streams. Specifically, the proposed rule defines “waters of the United States” as “traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands.” In addition, the agencies propose that “other waters” (those which do not fit within the proposed categories of waters jurisdictional by rule) would only be jurisdictional upon a case-specific determination that that, either alone or in combination with similarly situated ‘‘other waters’’ in the region, they have a ‘‘significant nexus’’ to a traditional navigable water, interstate water, or the territorial seas. The rule would also offer a definition of significant nexus and explain how similarly situated ‘‘other waters’’ in the region should be identified.

The rule will not be finalized until completion of a scientific assessment. The proposed rule contains a draft assessment, comprised of a review and synthesis of more than one thousand pieces of peer-reviewed scientific literature.

EPA and the Corps seek input on how the CWA should apply to “other waters” — those not fitting the definition of waters of the United States — and whether waters spanning multiple ecological regions should be evaluated individually or collectively. Comments on the proposed rule are due to EPA by July 21, 2014.

The proposed rule can be found at http://www2.epa.gov/sites/production/files/2014-04/documents/fr-2014-07142.pdf.

The proposed rule also preserves the CWA’s exemptions for agriculture. In collaboration with the U.S. Department of Agriculture, the agencies developed an interpretive rule to ensure that certain specific water conservation practices will not be subject to dredge or fill permitting requirements. This interpretive rule will go into effect immediately. The agencies recognize, however, the value of receiving public comment on the interpretive rule and are publishing it by separate notice in the Federal Register.

The public is encouraged to provide their comments on the interpretive rule to the docket on the interpretive rule, Docket Id. No. EPA–HQ–OW–2013–0820, and not the docket for the proposed CWA jurisdiction rule.

The interpretive rule and the request for comments can be found at http://water.epa.gov/lawsregs/guidance/wetlands/agriculture.cfm.

A new EPA draft report titled “Connectivity of Streams and Wetlands to Downstream Waters” is drawing attention across the country. When finalized, the document will provide the scientific basis for clarifying and possibly expanding Clean Water Act jurisdiction over isolated wetlands and other marginal waters. The process is expected to be controversial.

Federal officials increasingly have been at odds with public and private property owners, developers and project proponents over the jurisdiction of such waters in the wake of recent U.S. Supreme Court decisions, including Rapanos v. United States, 547 U.S. 715 (2006).  The EPA’s new report, released in September, synthesizes a large body of peer-reviewed literature on the topic. The report describes the effects that wetlands, ephemeral and intermittent streams, vernal pools, ponds, prairie potholes, and other “unidirectional” water bodies have on larger downstream waters, including lakes, rivers, oceans, and estuaries. The effects studied include not only hydrological connections to traditional downstream waters, but also biological, physical, chemical and ecological impacts.

The report will play a key role in the upcoming joint rulemaking by the U.S. Environmental Protection Agency and the Army Corps of Engineers to clarify which streams, wetlands and other waters fall under Clean Water Act jurisdiction as “waters of the United States.” The two agencies sent a draft rule to the federal Office of Management and Budget on Sept. 17 for interagency review. The draft rule has not yet been made public.

According to the EPA, the report contains three primary conclusions:

  • All streams, regardless of their size and flow rate, are connected to and have important effects on downstream waters, including providing habitat for species and transporting sediment and organic matter.
  • Wetlands and open-waters in the floodplains of streams and rivers and in riparian areas are integrated with streams and rivers. Such waters influence downstream waters by affecting flows, exchanging biological species, and trapping and reducing pollutants.
  • There is insufficient information to generalize about wetlands and open-waters that are located outside of riparian areas and their connectivity to downstream rivers, streams and oceans.

The draft “Connectivity” report is available here:

The EPA Science Advisory Board plans to hold a three-day public hearing Dec. 16–18, 2013, in Washington, D.C. to review the report.