EPA’s Proposed Rule on
Waters of the United States
February 27, 2014
Background
• CWA provides federal jurisdiction over
“navigable waters,” defined as “the waters of the
United States”
• In 1985, in Riverside Bayview Homes, the
Supreme Court upheld the regulation of
wetlands adjacent to or “inseparably bound up
with” navigable waters
• The agencies adopted the current regulations in
1986
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Background
• In 2001, the Supreme Court in SWANCC
rejected regulation of “isolated waters” under the
Migratory Bird Rule because the waters lacked a
“significant nexus to navigable waters”
− Emphasized Congress’ use of the term
“navigable”
• After SWANCC, the agencies adopted a broad
interpretation that “waters of the U.S.” include
any water “connected” to navigable waters
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Background
• In 2006, the Court in Rapanos rejected the
agencies’ “any hydrological connection” theory
of jurisdiction as overly broad
− Plurality opinion (Scalia):
• Rejected assertion of jurisdiction over ephemeral
streams, ditches, and drains
• Relatively permanent waters
− Kennedy concurrence:
• Joined plurality in rejecting the Government’s any
connection theory
• Significant nexus
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2013 “Proposed” Rule
• The Proposed Rule replaces the definition of “navigable waters” and
“waters of the United States” in the regulations for all CWA
programs, and in particular sections 311, 401, 402, and 404:
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33 C.F.R. § 328.3
40 C.F.R. § 110.1
40 C.F.R. § 112.2
40 C.F.R. § 116.3
40 C.F.R. § 117.1(i)
40 C.F.R. § 122.2
40 C.F.R. § 230.3(s) and (t)
40 C.F.R. § 232.2
40 C.F.R. § 300.5
40 C.F.R. § 300, Appendix E to Part 300, 1.5
40 C.F.R. § 302.3
40 C.F.R. § 401.11
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WOTUS Under the “Proposed” Rule
1.
2.
3.
4.
5.
6.
7.
All waters currently, in the past, or may be susceptible to use
in interstate or foreign commerce, including tidal waters;
All interstate waters, including interstate wetlands;
The territorial seas;
All impoundments of waters otherwise defined as waters of
the U.S.;
All tributaries of waters identified in 1-3 above;
All waters, including wetlands, adjacent to water
identified in 1-5 of this section; and
On a case-specific basis, other waters, including wetlands,
that alone or in combination with other similarly situated
waters in the region have a significant nexus to a water
identified in paragraphs 1-3
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New Definitions in “Proposed” Rule
• Tributary:
− Water body physically characterized by a bed and
bank and ordinary high water mark which contributes
flow directly or through other water bodies to waters
in 1-3.
− A water does not lose its tributary status if there
are man-made breaks (such as bridges, culverts,
pipes, dams) so long as bed and bank can be
identified up and downstream of the break.
− A wetland can be a tributary.
− A tributary can be natural, man-altered, or manmade and includes rivers, streams, lakes,
impoundments, canals, and ditches (unless
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excluded).
Tributary Definition
• The rule, for the first time ever, specifically defines
ditches as jurisdictional tributaries under all CWA
programs
− Roadside ditches
− Irrigation ditches
− Stormwater ditches
• Other man-made conveyances that drain or connect
would also likely qualify as tributaries
• Huge practical consequences that have yet to be
evaluated
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Farm Ditch
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Potomac, Maryland
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• Roadside ditch
constructed and
maintained by
Wicomico County,
Maryland roads
department
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Other New Definitions
in “Proposed” Rule
• Adjacent: Bordering, contiguous, or neighboring
waters separated from other WOTUS by dikes, or
barriers are adjacent waters
• Neighboring: Waters located within a riparian area or
floodplain or waters with a surface or shallow
subsurface connection
− Riparian area: Transitional areas between water and
land where surface or subsurface hydrology
influences the ecological process and plant
community of the area …
− Floodplain: An area bordering inland or coastal
areas that … is inundated during periods of moderate
to high water flows
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Industrial Ponds Along
the Arkansas River
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Washington,
DC
Floodplain
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Significant Nexus Definition in
“Proposed” Rule
• Significant Nexus:
− Means a more than speculative or
insubstantial effect that a water or wetland
has either or alone or in combination with
other waters in the region on waters 1-3.
− Other waters, including wetlands, are similarly
situated when they perform similar functions
and are located sufficiently close together so
that they can be evaluated as a single
landscape unit.
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Exclusions in “Proposed” Rule
• Waste treatment systems designed to meet the
requirements of the Clean Water Act;
• Prior converted cropland;
• Ditches excavated in uplands and that drain only
uplands and have no more than ephemeral flow;
and
• Ditches that do not contribute flow either directly
or through other water bodies to a water in 1-3
above
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Exclusions in “Proposed” Rule
• Artificially irrigated areas that would revert to uplands
should irrigation cease
• Artificial lakes or ponds created in dry land and used
exclusively for stock watering, irrigation, settling basins,
or rice growing
• Artificial reflecting pools or swimming pools created by
excavating and/or diking dry land
• Small ornamental waters created by excavating and/or
diking dry land for primarily aesthetic reasons
• Water-filled depressions from construction
• Groundwater drained through subsurface drainage
systems
• Gullies, rills, non-wetland swales, and puddles
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Why Does CWA Jurisdiction Matter?
• The amount of jurisdictional waters influences:
− Enforcement/likelihood for potential illegal
discharges
− Permitting/reporting requirements
• Type of permit: Nationwide or individual
− “Federal action” triggers: NEPA, ESA,
NHPA, 401 water quality certification, etc.
− Mitigation
− Third-party challenge
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Enforcement
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Enforcement
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Spill Prevention and
Countermeasure Plan
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Industrial Facility Implications
• Industrial ponds
− Refineries
− Process waters
• Industrial storm water systems
− Closing or modifying facilities
• Ditches and other conveyances
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Deidre G. Duncan
Hunton & Williams LLP
2200 Pennsylvania Avenue, NW
Washington, DC 20037
(202) 955-1919
dduncan@hunton.com