Clean Water Rule: The Ebb and Flow of “Waters of the U.S.”

Clean Water Rule: The Ebb and Flow of “Waters of the U.S.”
Riker Danzig Environmental UPDATE September 2015

The Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Army Corps”) recently promulgated the “Clean Water Rule:  Definition of  ‘Waters of the United States,’” which defines the scope of waters regulated under the federal Water Pollution Control Act (“CWA”).  The definition of “Waters of the United States” provides jurisdictional limits for the EPA and Army Corps to address unpermitted discharges to the nation’s water bodies in violation of the CWA.  This includes the authority to regulate the discharge of pollutants, including sewage and industrial waste, via the National Pollution Discharge Elimination System (“NPDES”) program under § 402 of the CWA,  the discharge of oil and hazardous substances, and the discharge of dredge and fill material to wetlands under § 404 of the CWA.   Water bodies that do not fall under federal jurisdiction are otherwise left to the jurisdiction of the state where the water is located. Nearly all states have assumed at least partial authority from the federal government to carry out permitting under § 402, including New Jersey and New York, yet only two states, New Jersey and Michigan, have assumed partial authority to carry out permitting under § 404.  

The CWA makes illegal the “discharge of any pollutant” with certain exceptions, including pursuant to permits issued under CWA §§ 402 and 404. The statute defines a “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source . . . .”  The CWA defines “navigable waters” as “waters of the United States, including the territorial seas”; however, the CWA does not define the term “waters of the United States.”  The resulting void has spawned decades of court battles and has left the Army Corps with great latitude in determining the scope of its jurisdiction under the CWA when regulating discharges to wetlands under § 404.  Under the current rule, in states without § 404 authority, such as New York, the Army Corps routinely conducts case-by-case jurisdictional determinations regarding wetlands and adjacent water bodies to decide whether they fall within the Army Corps’ permitting authority.  This precludes the ability of landowners and developers to make improvements upon or near federal wetlands without a § 404 permit, which may be in addition to permits or approvals needed under state law.  

The EPA and Army Corps state that the intent of the Clean Water Rule is to provide greater clarity, consistency, and predictability to the regulated public earlier in the development process regarding the scope of “waters of the United States” in a way that is consistent with the CWA, Supreme Court precedent, and science.  The new rule defines the following waters as “jurisdictional by rule”:  traditional navigable waters (such as rivers, lakes, and bays), interstate waters (including interstate wetlands), the territorial seas, and impoundments of, tributaries to, and waters adjacent to otherwise jurisdictional waters.  The Clean Water Rule’s new definitions for “tributaries” and “adjacent” waters have sparked the most debate, with critics of the rule claiming that they impermissibly expand the jurisdiction of the CWA.  The rule also categorically excludes certain water bodies from the definition, including waters previously excluded in prior regulations and new categories the EPA states follow long-standing federal policy.

The Clean Water Rule also provides for the continuation of case-by-case jurisdictional determinations, where “waters of the United States” include waters having a “significant nexus” to traditional navigable waters, interstate waters, or the territorial seas, including those within the 100-year floodplain and 4,000 feet of the high tide line or ordinary high water mark of jurisdictional waters.  The new rule states that water bodies, including wetlands, have a “significant nexus” if they, “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, and biological integrity” of traditional navigable waters, interstate waters, or the territorial seas. 

The Clean Water Rule has already been challenged in numerous federal courts by approximately 30 states (but not New York and New Jersey), and industry groups stating that the rule is ultra vires and unconstitutional, and by environmentalists who challenge the categorical exclusions in the rule.  In addition, separate legislative challenges that would require the EPA to redraft the rule are making their way through each house of Congress. 

On August 27, 2015, the day before the rule went into effect, a judge in a federal district court in North Dakota granted a request, made by thirteen states, for a preliminary injunction to halt the rule from going into effect in those states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming).  On September 4, 2015, the judge issued an order clarifying that the preliminary injunction is limited to the 13 states before the court in that case. Other district courts have denied preliminary injunction requests made by a dozen other states, where most of the actions filed have been consolidated before the Sixth Circuit Court of Appeals and await review. 

The Clean Water Rule will not affect the scope of federal § 404 permitting authority in New Jersey because the NJDEP has already largely assumed the Army Corps’ authority to issue § 404 permits for wetlands that are considered “waters of the United States.”  However, the EPA has always maintained the authority to review and comment on permits issued by the NJDEP that involve “major discharges” to “waters of the United States,” including activities that require a draft general permit.  Therefore, a broadening of the definition of “waters of the United States” by the Clean Water Rule may subject more NJDEP-issued permits to EPA review.  As a result, careful evaluation of what additional waters may now be deemed jurisdictional or categorically excluded under New Jersey’s application of the new rule is advised, especially regarding the NJDEP’s application of the “significant nexus” test for development projects in New Jersey involving wetlands and buffer zones.