By Sharon O. Jacobs
Today, the U.S. Environmental Protection Agency and the U. S. Army Corp of Engineers announced the final rule revising the definition of the Clean Water Act (“CWA”) regulatory term “waters of the United States.” The draft rule was previously discussed on March 27, 2014. The final rule includes eight categories of jurisdictional waters, maintains existing exemptions for certain categories of activities and waters, and adds additional exclusions for categories of waters not covered under the Act. This rule is projected to result in an increase in CWA jurisdiction and provide some clarification regarding which waters are covered by the CWA.
For the first time “tributary” and “tributaries,” “neighboring,” and “significant nexus” are defined in the new rule. The rule maintains existing exclusions for certain categories of waters and adds additional categorical exclusions that were previously applied by regulators. The rule recognizes jurisdiction for three basic categories: waters that are jurisdictional in all instances, waters that are excluded from jurisdiction, and a category of waters subject to a case-specific analysis to determine whether the water is jurisdictional.
Previous definitions of “waters of the United States” regulated all tributaries without qualification. The final rule defines “tributaries” as waters that are characterized by the presence of physical indicators of flow – bed and banks and ordinary high water mark – and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas. The rule states “adjacent waters” are “waters of the United States” and identifies three circumstances where waters will be “neighboring” and therefore “waters of the United States.” The rule also identifies certain waters that can be “waters of the United States,” where a case-specific determination finds a significant nexus between the water and traditional navigable waters, interstate waters, or the territorial seas.
The rule excludes certain waters, certain water features, groundwater, certain types of ditches, stormwater control features created in dry land and certain wastewater recycling structures created in dry land.
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