Clean Water Act Jurisdiction

The US Environmental Protection Agency and the US. Army Corps of Engineers on May 27, 2015, finalized a rule intended to clarify the Clean Water Act definition of "Waters of the United States" following a series of court rulings that muddied the scope of CWA jurisdiction over streams and wetlands adjacent or connected to "navigable" waterways.

In adopting a final version of a rule proposed in April 2014, the EPA and Corps stated that final Clean Water Rule "ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions."

EPA and the Corps further stated that the new rule "sets boundaries on covering nearby waters for the first time that are physical and measurable" and "significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features."

The final rule language is markedly different from the proposed rule. However, it is not immediately clear to what extent the final rule will alter the historic regulatory paradigm for managing water infrastructure.  This rule is effective 60 days after Federal Register publication; the new definitions are not applicable until permit renewal for existing permittees.

There were over a dozen petitions filed challenging the rule in district or appellate court arguing the rule was an expansion of federal authority over waterways. Three appellate cases were consolidated in the Sixth Circuit. On October 9, 2015, the US Court of Appeals for the Sixth Circuit stayed the Clean Water Rule nationwide pending further action of the court. 

The "Waters of the U.S." legal battle continued in November 2016 with 31 states and business interests filing briefs that say the presidential administration does not have the authority to expand federal jurisdiction over streams and wetlands. The filings were made in the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Ohio. That court has consolidated lawsuits filed by agricultural and business interests and state governments. 

In response to a February 2017 Executive Order by incoming President Donald Trump, EPA and the Corps of Engineers on March 6 published a notice of intent to review the 2015 rule based on interpreting the term navigable waters "in a manner consistent with the opinion of Justice Scalia in Rapanos." 

Proposed Rule

For its part, AWWA issued a report on understanding the proposed rule and joined with the Association of Metropolitan Water Agencies, the National Association of Water Companies and the Association of California Water Agencies in commenting on the proposed rule.

The joint comments expressed general support for EPA and Corps efforts to protect the chemical, physical, and biological, integrity of the nation’s waters while pressing them "to adhere to the spirit of CWA policy-making, which historically has balanced policy objectives with pragmatic solutions. Thus, in finalizing the definition of WOTUS, we encourage the EPA and Corps to consider the implications of this rulemaking on drinking water supplies, balancing the broad interests of the CWA in protecting the nation’s surface waters, while not unduly interfering with the provision of the nation’s drinking water and water utility operations."