Notice and Comment: EPA Seeks Comment on Revised Definition of “Waters of the United States”

by Elisabeth Ulmer

The Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) seeks comment on a proposed rule regarding the scope of waters regulated by the Clean Water Act (CWA). The rules are the result of two recent U.S. Supreme Court cases, U.S. v. Riverside Bayview, Rapanos v. United States (“Rapanos”) and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC”), that narrowed the reading of CWA jurisdiction. The EPA and the Corps would like to ensure that the definition of “waters of the United States” is “consistent with the CWA, as interpreted by the Supreme Court, and as supported by science.”

The Federal Water Pollution Control Act Amendments of 1972 established the CWA, which Congress passed in 1972 “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” The CWA covers “navigable waters,” defined in the Act as “waters of the United States, including the territorial seas.” However, according to the legislative history and the case law, the “waters of the United States” do not comprise only navigable waters.

In the 2001 “SWANCC” case, the Court referred to the 1985 United States v. Riverside Bayview Homes case, in which the Court adopted the Corps' judgment that “adjacent wetlands are ‘inseparably bound up’ with the waters to which they are adjacent.” The Court also approved adding adjacent wetlands to the regulatory definition of “waters of the United States.”

In the 2006 “Rapanos” case, all Justices agreed that “waters of the United States” include non-navigable waters that “are connected to traditional navigable waters,” and wetlands “with a continuous surface connection to such relatively permanent water bodies.” However, in his concurring opinion, Justice Kennedy stated that “waters of the United States” include wetlands with a “significant nexus” to navigable waters. If wetlands “significantly affect the chemical, physical, and biological integrity” of navigable waters, then they satisfy the significant nexus requirement.

The EPA and the Corps advocate applying this “significant nexus” standard for CWA jurisdiction over adjacent wetlands to other water bodies. The proposed rule would remove the part of the regulatory provision that defines “waters of the United States” as “all other waters…” These “other waters” would then be evaluated on a case-by-case basis to determine whether they have a significant nexus and the CWA should cover them.

Commentators on the proposed rule are invited to share improvements on how jurisdictional determinations are made, as well as on alternative options for determining which “other waters” would fall under the jurisdiction of the CWA. The proposed rule also seeks information on the connectivity of waters that could reduce a need for the case-by-case significant nexus determinations. Commentators may discuss any concerns about the proposed definition of “waters of the United States.”

Comments are due on July 21, 2014. Interested parties are invited to submit comments by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov
E-mail: ow-docket@epa.gov. Include EPA-HQ-OW-2011-0880 in the subject line of the message.
Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880. Send the original and three copies of your comments.
Hand Delivery/Courier: EPA Docket Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2011-0880.