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.
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