Federal agencies face growing opposition from members of Congress and industry regarding a proposed definition of “waters of the United States” under the Clean Water Act (CWA). The scope of federal jurisdiction under the CWA has been one of the most intractable issues in environmental law over the past decade. Recently proposed rules by the Army Corps of Engineers and the Environmental Protection Agency (EPA) are the latest effort to clarify which waterways and wetlands are subject to federal CWA regulations. This proposal has provoked a backlash because it would substantially expand federal jurisdiction and may not effectively clarify the regulatory obligations of private landowners.

The current rulemaking proposal follows two Supreme Court decisions and several agency guidance documents on the subject. Prior agency guidance relied heavily on fact-intensive “significant nexus” test announced by Justice Kennedy in U.S. v. Rapanos to determine whether a particular water body is subject to federal CWA regulations. For a description of Rapanos and prior agency guidance, see an earlier post on this blog and our May 2011 article in the Water Report.

The new rulemaking proposal seeks to move away from fact-specific inquiry and towards a bright-line test. Specifically, under the proposed rules, all tributaries of navigable waters, as well as “adjacent” wetlands and waterways would always be subject to federal CWA jurisdiction. The proposed rules also allow the Corps and EPA to take jurisdiction over additional “other waters” on a case-by-case basis under the significant nexus test.

These regulations could substantially expand federal regulation of wet areas across the county, but it is still unclear which water bodies would be covered by federal rules.  This is because the term “adjacent” and related definitions describe hydraulic relationships that are similar to those described by the significant nexus test.

These issues led a group of congressional representatives, including Oregon Democrat Kurt Schrader, to issue a letter earlier this month opposing the proposed regulations. The letter was signed by 231 members of the House of Representatives. Industry groups are also marshalling public comments against the proposal. The American Farm Bureau Federation, for example, argues that the proposed rules could “ultimately lead to the unlawful expansion of federal regulation to cover routine farming and ranching practices as well as other common private land uses, such as building homes.” The National Association of Homebuilders has issued similar criticism of the proposal.

The Corps and EPA are accepting public comments on the proposed rules through July 21, 2014. Once the public comment period ends, the Corps and EPA will decide whether and how to finalize the new rules. The agencies’ decision could spark both political and legal campaigns in the coming months. For more information about the proposed rules, contact Richard Glick or Michael Gelardi.