In This Issue

Final Rule on Waters of the USA

[EPA-HQ-OW-2011-0880; FRL-9927-20-OW] RIN 2040- AF30

On May 27, 2015, the U.S. EPA and Army Corps of Engineers (COE) issued a Final Rule re-defining and expanding the definition of jurisdictional “waters of the U.S.” under the federal Clean Water Act. This definition affects the need for permits under the COE’s Section 402 (NPDES) and Section 404 (wetland) programs, the need for EPA’s SPCC plans for non-transportation related facilities under 40 CFR 112, the need for OPA-90 spill response plans for pipelines under 49 CFR 194, and may affect the reporting requirements for releases or other incidents to the federal government and states.

The new rule extends the “significant nexus” standard in the 2001 SWANNC v. Army Corps decision, and establishes the following categories of waters that arguably demonstrate a significant nexus:

  • traditional navigable waters;
  • interstate waters;
  • territorial seas;
  • impoundments of jurisdictional waters;
  • tributaries;
  • adjacent waters (including any isolated water that is within 100′ of the ordinary high water mark of some other jurisdictional water, or located in the 100 year flood plain (in whole or part) of any jurisdictional water, and within 1500′ of the ordinary high water mark of that water), and
  • other areas, including five specific types of waters: Prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands.

The definition of “waters of the US” has been the subject of much interpretation, reinterpretation, and litigation, for decades… and this latest rulemaking is likely to continue that trend. Stay tuned.