On May 27, 2015, the United States Environmental Protection Agency and the Army Corps of Engineers released a Final Rule defining “Waters of the United States” under the Clean Water Act (the “CWA”). The new definition modifies the rule that has been in place since 1986 and changes the scope of federal jurisdiction under the CWA. Lewis Roca Rothgerber is issuing this alert because the new definition affects clients in the real estate, construction, mining, manufacturing, state and local government, utility, oil and gas, and agriculture sectors that develop, own or operate real property.

The CWA generally regulates discharges to “navigable waters.” Navigable waters are defined in the CWA to include the “Waters of the United States,” yet Congress did not define “Waters of the United States” in the CWA. The most recent Supreme Court decisions addressing the extent of federal jurisdiction over water bodies under the CWA created considerable uncertainty. This new rule is the government’s attempt to clarify that federal jurisdiction by defining which waters are “Waters of the United States.”

The new definition affects the permitting and compliance requirements under a number of CWA programs, including, for instance, wastewater discharge permitting, Stormwater permitting and “dredge and fill” and wetlands regulation. The rule will become effective 60 days after it is published in the Federal Register.

While most navigable waters such as large rivers and lakes have always been clearly regulated under the CWA, the new rule clarifies and extends federal jurisdiction to include remote tributaries, adjacent waters and wetlands, and certain kinds of region-specific features such as “prairie potholes” and “western vernal pools” that are not themselves navigable. The new definitions are potentially far-reaching, and provide the agencies with considerable latitude to require permitting before any discharges (including dredge or fill activities) are made into these jurisdictional waters. The agencies take enforcement of these permitting processes seriously, and developers or other regulated parties must remain vigilant in considering the jurisdictional status of any water or drainage features on project sites in order to avoid potential civil and criminal penalties.

While the new rule is designed to clarify (or, some would argue, expand) the agencies’ already broad jurisdiction, it also contains several new jurisdictional exceptions that will allow many activities and projects to move forward without obtaining federal CWA permits. The agencies have clarified that some types of ditches are non-jurisdictional, and have also made exceptions related to other man-made features associated with mining and construction activity. Of particular interest to clients in the arid west will be the exclusion for certain types of erosional features, such as gullies, and other ephemeral features. These exclusions, however, are not as clear as the agencies believe, and the challenge for the regulated community will be to navigate the complex set of inclusions and exclusions to decisively identify the features on a particular project site as jurisdictional or non-jurisdictional.