After much fanfare, the EPA in June 2015 promulgated new rules intended to clarify and provide certainty for the definition of the extent of the waters of the United States that are subject to jurisdiction under the Clean Water Act. Thirteen states filed a challenge to the new rules and on August 27th, the U.S. District Court for the District of North Dakota granted the states’ request for a preliminary injunction halting implementation of the rules. The long-sought certainty of definition remains tantalizingly out of reach.
Background: Why did the EPA develop a new rule?
On June 29, 2015 the U.S. Environmental Protection Agency (the EPA) published a final rule [1] (the Rule) under the Clean Water Act [2] (the Act) in an attempt to define more precisely and predictably what waters and wetlands are protected by the Act, and, therefore, fall within the jurisdiction of the EPA. The Act authorizes the EPA to regulate discharges into, and filling of, “waters of the United States.” Congress enacted the Act in 1972 to “to restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[3] The Act was intended to complement the already existing Rivers and Harbors Act [4], which was enacted to protect the navigability of the nation’s waters. The EPA, the regulated community and the Supreme Court have long agreed that the scope of the Act reached, therefore, beyond waters that are actually navigable. How much further into the nation’s water system the Act and the jurisdiction of the EPA reach has never been definitively settled. The EPA and the courts have continually struggled to demarcate the line where the waters of the U.S. end and private property begins. (In this article, I will use the term “jurisdictional” to refer to water that falls within the definition of waters of the U.S. and are subject to the jurisdiction of the EPA.)
The EPA had long believed a clarifying rule to be necessary in the aftermath of the Supreme Court’s decision in Rapanos v. United States.[5] In Rapanos, the Court indicated that the critical factor in determining the CWA’s coverage is whether a water has a ‘‘significant nexus’’ to downstream traditional navigable waters such that the water is important to protecting the chemical, physical or biological integrity of the navigable water. The EPA, in the Rule, seeks to define clearly what such a “significant nexus” is.
What does the new rule say?
To make that definition, the Rule divides all types of bodies of water into eight categories. The first three categories (traditional navigable waters, interstate waters and the territorial seas) are classified by the Rule as jurisdictional in all cases. The Rule also classifies the fourth category, impoundments of any waters falling within the first three categories, as jurisdictional in all cases.
The Rule classifies the next two categories of waters, tributaries and adjacent waters, as jurisdictional because study has confirmed that waters in those categories have a significant nexus to traditional navigable waters, interstate waters or territorial seas. For all of these waters that are jurisdictional by the Rule, no additional analysis is required. For the final two categories of waters, the Rule provides that a case-specific analysis is required to determine whether any significant nexus exists to traditional navigable waters, interstate waters or the territorial seas, either alone or in combination with similarly situated waters in the region.
The first category of such “case-by-case” waters actually includes five separate types: prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands. The Rule provides that waters in these categories should be analyzed “in combination” (as a group, rather than individually) in the watershed that drains to the nearest traditional navigable water, interstate water or the territorial seas when making the case-specific analysis. Finally, the Rule provides that waters within the 100-year floodplain of a traditional navigable water, interstate water or the territorial seas and waters within 4,000 feet of the high-tide line or the ordinary high-water mark of a traditional navigable water, interstate water, the territorial seas, impoundments or covered tributary are subject to case-specific significant nexus analysis.
Current Status of the Rule
In the EPA’s promulgation, the Rule was scheduled to become effective on August 28th. Thirteen states [6] filed a lawsuit seeking injunction against the effectiveness of the Rule. On August 27th, the federal District Court for the District of North Dakota determined that it had jurisdiction over the appeal of those 13 states and granted the request for preliminary injunction (courts in Georgia and West Virginia had determined that challenges to the rule could be brought only in the U.S. Court of Appeals for the Sixth Circuit and, therefore, earlier denied requests for preliminary injunction.). The North Dakota District Court found that the Rule is inconsistent with Rapanos decision, because the Rule’s broad definitions were likely to result in regulatory determinations that vast numbers of waters that are unlikely to have a “significant nexus” to navigable waters, as required by the Rapanos decision, would be subject to jurisdiction under the Act. The EPA in response has stated that in the 13 states that were parties to the appeal, the pre-existing rules (that is, the rules in effect prior to the promulgation of the Rule) will remain in effect. The EPA will rely on the Rule in the other 37 states. The Rule, intended to create certainty, has resulted in two distinct regulatory geographies in the United States. Perhaps the only remaining certainty is the certainty that this confusion will continue until resolved by Courts Of Appeals or the Supreme Court.
Implications for the Regulated Community
First, a company or individual intending to conduct any grading or clearing on property the company or individual owns must determine whether there are any regulated wetlands present on the property. The standards for determining whether a particular body of water is regulated as a wetland will vary depending on the state in which the property is located. If the property is located in one of the 13 states covered by the recent decision invalidating the new EPA rule, the prior standards will apply. The prior standards are somewhat more lenient than the new standards. A company intending to develop property in one of those 13 states, therefore, may want to accelerate development schedules to take advantage of the more lenient rules, before a decision on appeal might make the rules more stringent. A developer must be very vigilant, though, to make certain that an appellate decision does not affect his or her development plans. A developer in one of the affected 13 states must monitor reporting from the Courts of Appeals to know whether a decision is imminent.
In the 37 states now covered by the new rules, developers should engage qualified consultants to work with the EPA and the Army Corps of Engineers to be certain that all parties agree upon the extent of wetlands on the property to be developed. A developer should reach an agreement with the EPA and the Corps as to which parts of the property will be deemed wetlands under the new rule. If a developer proceeds without engaging the EPA and Corps, it is possible the developer could make a mistake in interpreting the new rules, since there is so little precedent or history to guide a developer as to how the EPA will act under the rules. A mistake by a developer could result in a stop work order, an order to restore wetlands, civil fines or even criminal prosecution.
[1] 80 Fed. Reg. 37054, et seq. (June 29, 2015), to be codified at 33 CFR Part 328 and 40 CFR Part 110, et seq.
[2] 33 U.S.C. §1251, et seq.
[3] Act, §1251(a)
[4] 33 U.S.C. §401
[5] 547 U.S. 715 (2006)
[6] Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming
A frequent lecturer and author on diverse environmental issues, 
