Earlier today, the Obama Administration finalized a Rule by the EPA and Army Corps of Engineers to significantly expand the definition of what falls under the category of being a “waters of the U.S.”, and thus fall under federal jurisdiction and oversight. Many waters including: ponds, streams, wetlands, tributaries and ditches that were not under federal jurisdiction, will now be covered by this rule.
The original Clean Water Act was enacted in 1972. It was written to cover “navigable waters” such as the Mississippi River, Great Lakes, and other major waterways. It had not been clear how far that jurisdiction was intended to reach upstream. The Supreme Court via two decisions in 2001 and 2006 added a “significant nexus” requirement to a navigable water for that upstream water to fall under federal jurisdiction. This rule appears to go far beyond that.
There are efforts underway already in Congress to block the rule and force EPA to do a revised rulemaking. Lawsuits are also likely to be filed on one of several grounds, as it appears as if the Administration may have violated the Administrative Procedure Act during this process; the Administration also failed to adequately protect small businesses in the rule making process; and the expanded federal jurisdiction appears to go far beyond what Congress intended in the 1972 Clean Water Act.
Here is a link to the EPA site with background materials and fact sheets for the final rule.
IMA-NA staff will continue to review this rule to determine its impacts and will get you more information in the coming days.