August 05, 2014
The U.S. EPA and the U.S. Army Corps of Engineers (the “Agencies) jointly announced on March 25, 2014 a proposed rule purportedly to clarify the Clean Water Act regulatory definition of “waters of the United States” (“WOTUS”). Expressly offered in light of the U.S. Supreme Court’s SWANCC and Rapanos decisions, the proposed rule posits that WOTUS are to consist of categorically included waters and certain other waters shown to, individually or collectively have a “significant nexus” to a categorically regulated WOTUS.
Waters categorically regulated as WOTUS are stated to generally include traditional navigable waters & impoundments, interstate waters and wetlands, and territorial seas. Waters “tributary” or “adjacent” (terms defined below) are also categorically included.
- “Tributary” includes waters which contribute flow to a navigable water, interstate water, territorial sea, or an impoundment of such waters.
- “Adjacent” means “bordering, contiguous or neighboring.” “Neighboring,” in turn, is defined to include waters located within the riparian area or floodplain of a [WOTUS] or “waters with a shallow subsurface hydrologic connection or confined surface hydrologic connection to such a jurisdictional water.”
With respect to non-categorically regulated WOTUS, the proposed rule defines “significant nexus” to mean that a water or wetland individually or collectively with other similarly situated waters in the region that “significantly affects the chemical, physical, or biological integrity of a [traditional navigable water, interstate water, or territorial sea]. For an effect to be significant, it must be more than speculative or insubstantial. Other waters/wetlands, are considered to be similarly situated when they “perform similar functions and are located sufficiently close” so that they can be evaluated “as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a [traditional navigable water, interstate water, or territorial sea].”
The proposed rule's public comment period has been extended until October 20, 2014.