Over the objections of multiple national, state, and local groups, the EPA and the Corps of Engineers have published their final rule regarding the definition of ‘waters of the United States.’ Although they claim that the new definition merely ‘clarifies’ their existing jurisdiction, it actually expands their regulatory authority to waters and wetlands to an extent not contemplated when the Clean Water Act (CWA) was originally passed. The scope of jurisdiction is critically important because a costly and time-consuming permit is required to place materials in wetlands or other waters deemed jurisdictional.
The 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 delineate the scope of jurisdiction under the CWA over those waters, which include wetlands. Now, based on the final rule, that regulatory reach or jurisdiction is even broader. Three portions of the final rule demonstrate the expansive reach of jurisdiction.
Traditional navigable waterbodies are those that are, or were traditionally, used in commerce or which are susceptible to be used in commerce. In the past, this was mainly larger rivers, canals, and streams on which goods could be transported by vessels. The agencies, though, now regards a waterbodies’ susceptibility for commercial use extremely expansively. In the preamble to the proposed rule, they stated that a mere likelihood of future commercial use could be demonstrated by proof of recreational canoe trips. In the preamble to the final rule, they added that such likelihood could be demonstrated by proof of guided fishing trips. In other words, a traditional navigable waterbody now includes streams small enough in which to paddle a canoe or fish with a guide.
Tributaries to traditional navigable waterbodies, even very small ones, are also jurisdictional if they have 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). Once the waterbody meets the definition of a tributary, it is jurisdictional under the rule. So, a ditch with a bed/bank and an ordinary high water mark that sometimes carries water after a heavy rain and eventually flows to a traditional navigable waterbody (even if that traditional navigable waterbody is miles away and only big enough to put a canoe in) is classified as a tributary and the agencies have jurisdiction over it.
Wetlands that are ‘adjacent’ to a traditional navigable waterway or a tributary are also jurisdictional. Adjacent is broadly defined and means bordering, contiguous or neighboring. Neighboring is also expansively defined to encompass waters in the same floodplain and that are located within a certain distance from the traditional navigable waterbody or tributary. 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. Further, because adjacency also includes neighboring wetlands, the wetland does not even have to border the ditch but only be within a certain distance to it and be within the same floodplain.
In short, the final rule expands the jurisdiction of the agencies over waters that were not regulated or over which they had to prove a significant connection. Judicial review will surely be sought and the courts (probably the Supreme Court) will ultimately decide if the agencies went too far.