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U.S. EPA and the Army Corps Finalize Much-Anticipated “Waters of the United States” Definition

On May 27, 2015, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (Corps) issued a highly anticipated revision to the federal definition of “waters of the United States.”  By expanding the application of various regulations under multiple federal environmental laws—including the Clean Water Act (CWA) and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)—this revision is expected to significantly impact the manufacturing industry and various other industrial sectors.

Specifically, this revised definition will almost certainly increase the number of federal CWA permits that are required for activities impacting waters (such as dredging, filling, and discharging wastewater), as the revised definition dramatically expands the number and types of waters subject to regulation under the CWA. In addition, because the revised definition will be incorporated into or otherwise impact regulations under several other environmental laws, facilities located near waters that did not previously qualify as “waters of the United States”—but do now—may be subject to increased regulatory compliance obligations. These increased obligations may include a requirement to notify the federal government of releases to waters that were not previously defined as “waters of the United States,” as well as a requirement for facilities located near waters not previously defined as “waters of the United States” to prepare a spill prevention, control, and countermeasure (SPCC) plan.

The bottom line is that manufacturers may need to reevaluate whether they, or their business partners, are subject to regulations that previously did not apply.

The Cost of Clarity? The Revised Definition of “Waters of the United States”

Under prior regulations and guidance, U.S. EPA and the Corps engaged in a case-by-case analysis to determine whether federal jurisdiction existed for certain categories of waters, such as isolated wetlands, non-navigable tributaries, and ephemeral or intermittent streams. In developing the revised definition, the agencies attempted to provide clarity by minimizing the number of instances where a case-by-case evaluation is necessary. To achieve this goal, the agencies expanded the scope of waters that are defined as “waters of the United States,” and are therefore automatically subject to federal jurisdiction. While this likely reduces the number of case-by-case determinations that are required—giving greater certainty to the regulated community—it also increases the number and types of waters that fall within federal jurisdiction beyond those that would have on a case-by-case basis.

Overall, the new definition of “waters of the United States” now identifies eight categories that are subject to federal jurisdiction. Six require no individual, case-by-case analysis, as waters meeting the criteria in these six categories are automatically deemed jurisdictional. The other two categories require a case-by-case analysis, which analysis must include both (1) the specific water in question and (2) any “similarly situated” waters. This means that in conjunction with the water in question, any other waters that “function alike and are sufficiently close to function together in affecting downstream waters” must be considered when determining whether federal jurisdiction exists.

While the agencies claim that the new rule will “clarify and simplify” the question of whether federal jurisdiction exists—through increased bright-line boundaries and more concise definitions—the revised definition undoubtedly expands the number of waters subject to CWA jurisdiction, while retaining (if not expanding) the agencies’ case-by-case discretion.

Timelines for Implementation and Judicial Review

The final rule will become effective 60 days after its publication in the Federal Register. Given the controversial nature of this new rule, it is no surprise that federal legislation has been proposed that would require the agencies to withdraw the rule and reconsider various elements. Lawsuits challenging the validity of the rule are also anticipated, although the proper forum for judicial review was not affirmatively resolved in the prepublication version of the rule.

Meanwhile, manufacturers and other parties looking to conduct activities that may impact covered waters should consider the impact of the new, expanded definition of “waters of the United States.”

© 2020 Foley & Lardner LLPNational Law Review, Volume V, Number 169

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About this Author

Louis Thorson, Environmental Attorney, Foley Lardner Law Firm
Associate

Louis Thorson is an associate and business lawyer with Foley & Lardner LLP, where he assists clients with various regulatory compliance matters under federal and state environmental laws and regulations, including the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation and Recovery Act (RCRA), the Clean Air Act (CAA), the Clean Water Act (CWA), the Toxic Substances Control Act (TSCA), the Emergency Planning and Community Right-to-Know Act (EPCRA), the Safe Drinking Water Act, the National Environmental Policy Act,...

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