Last week, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“Agencies”) jointly released a proposed rule that further defines the scope of waters protected under the Clean Water Act (“CWA”). The proposed rule revises the definition of “waters of the United States” and also adds new definitions for the terms “neighboring,” “riparian area,” “floodplain,” “tributary,” and “significant nexus.” The impetus behind this rule is an attempt to reduce the confusion and uncertainty generated in the wake of two U.S. Supreme Court decisions that added complexity, rather than clarity, to the determination of whether a water body was a jurisdictional “Water of the United States” regulated under the CWA. See Solid Waste Agency of N. Cook County (SWANCC) v. U.S. Army Corps of Eng’rs., 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006).
The stated purpose of the proposed rule is to clarify that most seasonal and rain-dependent streams are jurisdictional; that wetlands near rivers and streams are jurisdictional; and that other types of waters where the connections to downstream waters are unclear will be evaluated on a case-specific basis. For the first time, the rule also proposes to exclude certain categories of waters and features over which the Agencies have not traditionally asserted CWA jurisdiction. However, the longstanding permitting exemptions and exclusions for farming, silviculture, ranching, and other specified activities remain unchanged. As the Agencies explain, the proposed rule is intended to provide the long-awaited “clarity, certainty, and predictability for the regulated public and the regulators.”