Yesterday the United States Environmental
Protection Agency and the Corps of Engineers released a pre-publication, final
version of a new rule defining the scope of “waters of the United States” under
the Clean Water Act. This definition is
key to the agencies’ jurisdiction under the National Pollutant Discharge
Elimination System, Clean Water Act Section 404 permitting for discharge of
dredge and fill materials, Oil Pollution Act coverage, and other federal water
quality permitting, notification, and liability programs. The rule replaces 2008 guidance and 2011
draft guidance (later withdrawn) issued by the agencies in the aftermath of the
U.S. Supreme Court’s plurality opinion in Rapanos v. United States and Carabell v.
United States, 547 U.S. 715 (2006), in which Justice Kennedy articulated a
“significant nexus” test for defining waters of the U.S. The rule will become effective sixty days
after publication in the Federal Register.
EPA and the Corps say the rule expands the scope of waters covered by
these laws by only about 3%, but industry and development interests claim the
expansion is much greater. Industry,
development, and environmental interests have all threatened to seek judicial
review of the new rule. EPA has posted
information on the rule, including the text of the final rule.
This post was written by Janet McQuaid (janet.mcquaid@nortonrosefulbright.com or +1 724 416 0427) from Norton Rose
Fulbright's Energy Practice Group.
