By Andrew H. Perellis

On April 27, USEPA and the U.S. Army Corp of Engineers (USACE”) released proposed guidance clarifying the definition of “Waters of the United States” subject to jurisdiction under various Clean Water Act (“CWA”) regulations. The guidance is intended to define “Waters of the United States” to assist USEPA and USACE staff in making determinations about applicability of various CWA provisions in light of the Supreme Court’s decisions in Solid Waste Agency of Northern Court County v. U.S. Army Corp of Engineers, Rapanos v. United States (“Rapanos”) and United States v. Riverside Bayview Homes. Once the guidance is finalized, it will serve as basis for future rulemakings, codifying the extent of Clean Water Act jurisdiction.

Compared to existing guidance, (which the new guidance is intended to replace), the definition of “Waters of the United States” is expanded, but the new guidance retains a case-by-case consideration of facts and circumstances in jurisdictional determinations. The guidance defines “Waters of the United States” so that that term is interpreted consistently under the CWA Section 303 Water Quality Standards, Section 311 Oil and Hazardous Substance Liability Provisions, Section 401 Permitting Provisions, Section 402 NPDES Permitting Provisions, and Section 404 Wetlands/Dredge and Fill Permitting Provisions. The guidance generally: (i) identifies waters which are specifically protected under the CWA; (ii) identifies waters which are protected under the CWA on a case-by-case analysis, if it is determined such waters have a “Significant Nexus” with traditional navigable waters or interstate waters; and (iii) lists aquatic areas which are not regulated. Waters specifically identified as being protected under the CWA include, (as defined in the guidance): “traditional navigable waters”, “interstate waters” and wetlands adjacent thereto; “wetlands”; “non-navigable tributaries to traditional navigable waters that are relatively permanent”; and “other waters” that directly abut relatively permanent waters. The types of aquatic areas that are not regulated under the CWA include: certain “wet areas”; waters specifically excluded under existing CWA regulations; waters that lack a “Significant Nexus” to protected waters; waters that are created “artificially” by excavating dry land, including irrigated areas, lakes, ponds, reflecting pools, swimming pools, small ornamental waters; and new water-filled areas incidental to construction activities, including swales, ditches, depressions and subsurface drainage systems.