Overview of the New Waters of the United States Rule​

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WITH: Michael Bloom, PE, ENV SP, BCEE, R.G. Miller Engineers, Inc.

On June 29, 2015 the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) jointly published a final rule that redefines “waters of the United States” under the Clean Water Act and its implementation regulations and programs.  The rulemaking was undertaken in an effort to provide more clarity after a succession of three U.S. Supreme Court decisions altered the requirements for the federal government to assert jurisdiction over aquatic resources such as streams and wetlands, especially for the purposes of Section 404 permitting.

In their 1985 decision in United States v. Riverside Bayview Homes (Riverside) the Supreme Court found that aquatic resources “adjacent” to navigable water were jurisdictional.  In their 2001 decision in Solid Waste Agency of Northern Cook County v. USACE (SWANCC) the court held that isolated wetlands used by migratory birds were not jurisdictional if their use by migratory birds was the sole reason used to assert jurisdiction.  In their 2006 decision in Rapanos v. United States (Rapanos) the court found that waters with a “significant nexus” to navigable waters would be jurisdictional.

The rule became effective on August 28, 2015 but was then stayed from nationwide implementation on October 9, 2015 by the United States Court of Appeals for the Sixth Circuit as a result of numerous lawsuits filed by states and regulated entities.

The presentation will provide an overview of the stayed new rule with illustrations of which waters would be jurisdictional under the rule and which waters would not be.   The presentation will also provide an update on the litigation and a review of how to determine if waters are jurisdictional under the existing rules that will remain in effect until the new rule litigation is completed.

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