On May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) issued a pre-publication final rule defining the jurisdictional "Waters of the United States" regulated under the Clean Water Act (CWA). Unless blocked by some federal legislation or court order, the final rule will go into effect 60 days after publication in the Federal Register. That effective date will likely be around mid-August.
As with the proposed rule—on which the agencies received more than 1 million comments—EPA and the Corps purport that the final rule promotes clarity, certainty, and efficiency by "providing simpler, clearer, and more consistent approaches" for determining which waters are regulated under the CWA. However, many regulated operators oppose the final rule and assert that it unlawfully expands federal jurisdiction.
Much of the final rule incorporates long-standing EPA and Corps guidance, regulations, and common practice regarding which waters are considered jurisdictional. Some portions of the rule, however, break new ground. Focused largely on applying the "significant nexus" test from Justice Kennedy's concurrence in the 2006 U.S. Supreme Court Rapanos case, these new provisions in practice could operate to substantially expand the areas regulated under the CWA. In the Western U.S., the final rule poses unique concerns for the regulated community due to the region's topography and aridity. Several Western industries in particular—including the oil and gas, mining, construction, municipal, renewable energy, and agricultural sectors—should closely examine the final rule for potential impacts to planned and ongoing projects and operations.
This client alert describes the final rule and areas of particular concern to operators in the Western U.S.