New Rule Issued by Army Corps of Engineers regarding Clean Water Act

The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) (collectively, the “agencies”) issued a new ruling on June 29, 2015, that redefines the waters covered by the Clean Water Act. The new ruling, entitled the “Clean Water Rule” by EPA, is important for industry because activities that pollute or fill in waters covered by the Clean Water Act (33USC-1251) (Act) are subject to permitting requirements.

The goal of the new “Clean Water Rule” is to more precisely define terms that have been problematically vague in the past. At first reading, the Clean Water Rule (Rule) succeeds in providing clearer terminology without greatly changing the scope of the Act. In practice, as the American College of Environmental Lawyers predicts, legal actions and the court system will most likely decide if the new definition is consistent and precise, and how far its scope of application extends (source available here).

The difficulty of determining whether the Act applies to a given body of water arises from the Act itself. At 33 U.S.C. § 1361(7), the Act states that it protects “the waters of the United States, including the territorial seas.” The agencies have traditionally defined this to mean that the Act covers:

• Navigable waters
• Territorial seas
• Interstate waters
• Impoundments of any of the above

The courts have generally agreed that these four categories are “waters of the United States” and are therefore, covered by the Act. The new Rule maintains these categories.

The agencies and courts have also determined that the Act covers waters that are significantly connected to traditional “waters of the United States.” The agencies previously defined these connected waters as “tributaries” or “adjacent waters” without further specifying what these terms meant. The new Rule provides the following specifications:

• A “tributary” must have physical characteristics of “flow” which are a bed and banks, and a high-water mark.
• “Adjacent waters” are contiguous, bordering or neighboring to waters of the United States. They may be separated by constructed or natural barriers.
• Adjacent waters that are “neighboring” are either: within 100 feet of the high-water mark; or within the 100-year floodplain and 1,500 feet of the high-water mark; or within 1,500 feet of the high-tide line.

The new Rule also states that certain types of water bodies may be covered by the Act if, after a case-by-case analysis, it is determined that a “significant nexus” connects the water body to a water of the United States. This category includes the following types of water bodies:

• Prairie potholes
• Carolina and Delmarva bays
• Pocosins
• California western vernal pools
• Texas coastal prairie wetlands
• Waters within the 100-year floodplain or within 4,000 feet of a high-tide marker of a water of the United States.

The Rule does not remove exemptions for any type of water that was previously exempt from the Act. Converted cropland and waste treatment systems remain excluded. The Rule explicitly exempts these types of waters for the first time:

• Ditches not in or draining wetlands
• Ditches with ephemeral flow not located in a tributary
• Ditches with intermittent flow not located in a tributary or draining a wetlands
• Groundwater and erosional features
• Stormwater features
• Cooling ponds

The new rule may impact industries that discharge into waters, dredge or fill-in waters, or discharge oil or hazardous materials. Industries that discharge into waters covered by the Act must obtain National Pollutant Discharge Elimination System (NPDES) permits. Activities that dredge or fill-in waters covered by the Act are subject to Section 404 permitting requirements. Owners and operators of non-transportation-related oil facilities must have oil pollution prevention plans to prevent discharges into waters of the United States. The new definition will be added to the following regulations which affect NPDES permits, Section 404 permits, and Oil Prevention Plans:

• 33CFR-328: Definition of Waters of the United States
• 40CFR-110: Discharge of Oil
• 40CFR-112: Oil Pollution Prevention
• 40CFR-116: Designation of Hazardous Substances
• 40CFR-117: Determination of Reportable Quantities for Hazardous Substances
• 40CFR-122: EPA Administered Permit Programs: The National Pollutant Discharge Elimination System
• 40CFR-230: Section 404(B)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material
• 40CFR-232: 404 Program Definitions; Exempt Activities Not Requiring 404 Permits
• 40CFR-300: National Oil and Hazardous Substances Pollution Contingency Plan
• 40CFR-302: Designation, Reportable Quantities, and Notification
• 40CFR-401: General Provisions

The new Rule is effective August 28, 2015. Anticipating legal action, the agencies also included the opening date for judicial review (July 13, 2015) in the Rule’s publication in the Federal Register. As Supreme Court Chief Justice Roberts said in the 2006 Rapanos decision (source available here), the Clean Water Act provided “broad, somewhat ambiguous, but nonetheless clearly limiting terms.” Perhaps a future Supreme Court verdict will demonstrate what the Chief Justice thinks of the agencies most recent efforts at “developing some notion of an outer bound to the reach of their authority.”