During the golden age of discovery, an explorer arriving at the mouth of an unknown river would plant his country’s flag and claim all lands drained by that river for his sovereign. In modern times, there is no need for any flags or ocean voyages. Our sovereign simply publishes a proposed rule to accomplish the same thing.
The Clean Water Act (CWA) prohibits discharges of dredged or fill material into “navigable waters,” which are defined in the CWA as the “waters of the United States.” Regulations published by the U.S. Army Corps of Engineers (Corps) provide an expansive definition of waters of the United States, which serves to delineate the scope of the Corps’ jurisdiction under the CWA over those waters, which include wetlands. A permit from the Corps is required to place material in wetlands or other waters deemed jurisdictional.
The Corps has released a proposed rule that provides an even more expansive definition of U.S. waters, which serves to expand its jurisdiction over tributaries and wetlands far removed from any traditional navigable waters. If the proposed rule becomes final as written, permits will be required for activities in areas that were not previously regulated and that could be dozens of miles from navigable waterways.
The Corps stated it was attempting to provide clarity to the types of waters and wetlands subject to the CWA. The proposed rule includes waters that are or have been used in interstate or foreign commerce, interstate waters, territorial seas and impoundments of those waters. It then includes all tributaries of those waters and wetlands adjacent to those waters. This sounds straightforward enough. However, the devil is in the details or, in this case, the definitions.
A tributary is a body of water characterized by the presence of a bed/bank and an ordinary high water mark that contributes flow to traditional navigable waterways, interstate waters, territorial seas and impoundments. The flow can be ephemeral (last for a short time), intermittent (not continuous or steady) or perennial (regularly repeated or renewed). So a ditch that sometimes carries water after a heavy rain and eventually flows to a traditional navigable waterway will be classified as a tributary under the proposed rule even if it is miles and miles from a traditional waterway.
Adjacent is a broad term that means bordering, contiguous or neighboring. Under the definition, a wetland that borders the ditch (tributary) described above is also subject to jurisdiction even though no other wetlands are present and the closest traditional navigable waterway is miles away. It gets worse, however. Neighboring is expansively defined to encompass waters within the same floodplain and with a shallow subsurface hydrologic connection. As a result, the wetland doesn’t have to border the ditch but merely be within the same floodplain.
Isolated wetlands and tributaries miles and miles from traditional navigable waterways were not previously subject to jurisdiction unless they had a “significant nexus” or connection to a traditional navigable waterway. This required an in-depth analysis by the Corps to prove the chemical, physical and biological interrelationship between the wetland and the traditional navigable waterway. Under the proposed rule, the Corps has decreed all such wetlands and tributaries are jurisdictional, dispensing with the need to prove a significant nexus for isolated/remote wetlands and tributaries.
The proposed rule will surely prove to be controversial as the government has asserted control and jurisdiction over areas that were previously unregulated or required some proof of a significant nexus to a traditional navigable waterway. In short, the government has planted its flag and declared its dominion over vast swaths of previously unregulated property.