On May 27, 2015, the United States Environmental Protection Agency ("EPA") and Army Corps of Engineers jointly released a final rule clarifying what bodies of water are subject to federal jurisdiction under the Clean Water Act. Also known as the Clean Water Rule, 40 CFR 230.3 is intended to define what is meant by the term waters of the United States to provide certainty in practice and to reconcile recent Supreme Court decisions. Under this rule, terms such as "tributary" and "significant nexus" are now defined to enable environmental stakeholders and those affected by the rule to streamline permitting decisions and achieve consistent results.
This rule affects a vast array of businesses and industries, particularly real estate development, energy, mining, construction, development, and agriculture. Waterways and ditches previously exempt from federal jurisdiction may now require permitting for discharge or be subject to violations and penalties.
Clean Water Rule Changes and Definitions
The rule defines waters of the United States to include any tributary that has a bed, banks, and ordinary high water mark. These physical features demonstrate flow, even if intermittent or ephemeral and include rivers, streams, canals, and select ditches that act as tributaries by carrying pollution downstream. The rule extends, on a case-by-case basis, to related water features such as prairie potholes, Texas coastal prairie wetlands, Carolina and Delmarva ponds and wetlands, and Western vernal pools.
For the first time, the rule gives measurable distances to ascertain whether waters of the United States extend to adjacent waters. Thus, the rule applies to waters that are within the 100-year floodplain and no more than 1500 feet from a water of the United States.
Interpreting two Supreme Court recent decisions, the rule defines and clarifies the term significant nexus for the purposes of federal jurisdiction. Waters, including wetlands, are now considered to have a significant nexus to waters of the United States if "either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water." To be significant, the effect must not be speculative or insubstantial. The waters "are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters." The EPA asserts that the rule is based on Supreme Court opinions and the current scientific standards, and is to be used when making case-specific determinations
The rule excludes several manmade bodies of water typically associated with construction, mining, and agriculture. The new rule exempts artificial lakes and ponds, water-filled depressions incidental to mining or construction, erosion features such as gullies and grass swales, and artificially irrigated areas that convert back to dry land. Interestingly, certain exemptions are available for ditches without the physical markers of a tributary.
While the EPA hails the final rule as "a generational rule and completes another chapter in history of the Clean Water Act," opposition in Congress threatens to derail its final implementation. Transportation and Infrastructure Committee Chairman Bill Shuster and Water Resources and Environmental Subcommitee Chairman Bob Gibbs, in a joint statement, referred to the new rule as a "power grab" and voiced their support for The Regulatory Integrity Protection Act (H.R. 1732), which would withdraw the rule. The implementation of the rule, as well as possible political disruptions, will continue to unfold in the near future.
Recommended Next Steps
This rule presents significant changes to companies in a wide swath of industries, and consulting with Environmental counsel is recommended to address questions, concerns, and guidance relating to rule. Polsinelli's Environmental practice can assist you in properly investigating all environmental issues to ensure that you are fully aware of and comply with all necessary requirements under the new rule. For more information, please contact the authors or your Polsinelli attorney.