The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers promulgated a new rule under the Clean Water Act (CWA) this past June with the intent of finally clarifying the agencies' jurisdiction over “waters of the United States.” Unfortunately, the controversial new Clean Water Rule has only muddied the waters, as its future is uncertain. Conflict over the rule centers around industry and property owners' need for predictable permitting guidelines within the authority of the CWA and the agencies' goal of ensuring vital wetlands and waterbodies are adequately protected. Challenges to the rule were filed in federal district courts and courts of appeals all over the country by individual states, the regulated community and environmental organizations. As discussed below, all eyes are now on the U.S. Court of Appeals for the Sixth Circuit, which stayed the implementation of the rule across the country and now must decide whether it even has jurisdiction to decide the substantive issues of the case.

What Is the Significance of the New Rule?

The Clean Water Act was passed over 40 years ago but its scope and reach over various waterbodies across the country is still being debated. Congress created uncertainty in the act by limiting the agencies' jurisdiction to “navigable waters,” which is defined only as “waters of the United States, including the territorial seas.” Faced with this overly broad and vague definition, the agencies have wrestled with how to determine which waterbodies and wetlands constitute “waters of the United States” and therefore fall under their jurisdiction. Whether waterbodies are subject to federal jurisdiction is significant because of the myriad federal regulations that are triggered once jurisdiction is established. Such regulations include the comprehensive permitting scheme known as the National Pollutant Discharge Elimination System (NPDES), dredge and fill permits, water quality certifications, and oil spill prevention programs.

In 2006, the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006), clarified—to some extent—the limit of the agencies' jurisdiction. In a plurality decision, Justice Anthony Kennedy concurred with the four conservative justices that the Corps had overstepped its jurisdiction, and articulated a “significant nexus” test to determine which waterbodies constitute “waters of the United States.” Jurisdiction over a waterbody or wetland exists, Kennedy explained, where it has a “significant nexus” to other jurisdictional waters. To establish a “significant nexus” the waterbody must significantly affect the physical, biological and chemical integrity of a downstream navigable waterway. This ruling only led to further uncertainty as the Corps struggled to apply the subjective “significant nexus” test on a site-by-site basis to establish which waters met these criteria.

Implications of the New Rule

In response to the continued uncertainty after Rapanos, the EPA and the Corps promulgated the new Clean Water Rule on June 29. In the summary of the final rule, the agencies proclaimed that the new rule will “ensure protection for the nation's public health and aquatic resources, and increase CWA program predictability and consistency by clarifying the scope of 'waters of the United States' protected under the act.” The rule clarifies the definition of tributaries and adjacent waters, and also codifies the agencies' authority to make determinations of what constitutes a jurisdictional waterbody under the “significant nexus” test.

Perhaps the most controversial aspect of the new rule is the addition of bright-line geographical limits to establish jurisdiction over waterbodies. Under the rule, all waters located within a 100-year floodplain of traditional navigable waters (i.e., waters used in commerce, interstate waters and territorial seas) and all waters within 4,000 feet of a high tide line or ordinary high water mark of jurisdictional waters that also have a significant nexus to the jurisdictional water are considered “waters of the United States.” In keeping with the Rapanos decision, these case-specific “significant nexus” analyses require a determination if “any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity” of the nearest traditional navigable water.