Waters of the U.S. Rule

On May 27, 2015, the Environmental Protection Agency (EPA) released its finalized Waters of the United States rule just over a year after it released its proposed rule. This rule was proposed to clarify the EPA’s jurisdiction over the nation’s waterways under the Clean Water Act after the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. United States Army Corps of Engineers and Rapanos v. United States.

The EPA maintains the Waters of the U.S. rule is codifying the Supreme Court’s holdings in SWANCC and Rapanos and that the Rule is not an expansion of the EPA’s regulatory authority. The rule was finalized after approximately 400 meetings between EPA personnel and stakeholders and a 207-day public comment period that yielded over one million public comments. The rule establishes jurisdiction of the Clean Water Act over eight different types of waters:

  • Traditional navigable waters
  • Interstate waters
  • Territorial seas
  • Impoundments of jurisdictional waters
  • Tributaries
  • Adjacent waters
  • Regional specific waters – prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands can be regulated on a case-by-case basis.
  • Waters within the 100-year floodplain of traditional navigable water, interstate water, or the territorial seas and waters within 4,000 feet of the high tide line or the ordinary high water mark of a traditional navigable water, interstate water, the territorial seas, impoundments, or tributary can be regulated on a case-by-case basis.

Bi-partisan groups of legislators, advocacy groups, and industry experts are concerned the EPA is expanding its jurisdiction under the Clean Water Act and that broad new types of waters and wetlands will be subject to federal permit requirements. The American Farm Bureau has taken the lead on advocacy efforts and stated that its members are concerned they will need to apply for federal permits to conduct routine farm work such as building a fence or applying pesticides around man-made drainage ditches on their property.

Meanwhile, environmental groups who agree with detractors that the EPA is expanding its authority have hailed the expansion as long overdue.

Attorney General Brad Schimel has joined several other states suing the EPA over the rule. On Thursday, August 27, the U.S. District Court for the District of North Dakota enjoined the rule just hours prior to it taking effect. The District courts for the Southern District of Georgia and Western Virginia, where some states are also challenging the rule, declined to enjoin the rule. The EPA said they would begin implementing the rule on all states not covered by the North Dakota injunction, starting on August 28. AG Schimel unsuccessfully argued the injunction covered all 50 states, not just the 13 involved in the case. The rule is currently in effect in the 37 states not covered by the injunction. Wisconsin and the other states covered by the injunction are currently regulated by prior regulation.