EPA and Army Corps of Engineers Propose New Rule Defining “Water of the United States”

On Tuesday, December 11^th, The United States Environmental Protection Agency (EPA) and the Army Corps of Engineers released a proposed rule clarifying which waterways in the country are subject to jurisdiction under the Clean Water Act. The rule is intended to rescind and replace President Obama’s 2015 Clean Water Rule, which defined “waters of the United States” for all sections of the Clean Water Act (CWA) “to include the traditional navigable waters (a)(1), interstate waters (a)(2), the territorial seas (a)(3), impoundments of jurisdictional waters (a)(4), covered tributaries (a)(5), and covered adjacent waters (a)(6).” Furthermore, the original 2015 rule identifies certain types of waters that can be “waters of the United States” where a case-specific determination has found a significant nexus between the water and traditional navigable waters. The original rule affirms that five specific types of water (Prairie potholes, Delmarva and Carolina bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands) are “‘similarly situated,’ and thus are to be considered in combination in a significant nexus analysis.”

In the 2015 rule, EPA and the Army Corps base their definition of a “water of the United States’ on U.S. Supreme Court Justice Anthony Kennedy’s opinion in Rapanos v. U.S., a case that attempted to illustrate the range of CWA jurisdiction. In his opinion, Justice Kennedy expressed a view of CWA applicability that was dependent upon the water in question exhibiting either a significant nexus to a traditional navigable water or the ability to “significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

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