The 2018 Clean Water Rule eliminates the significant nexus determination, streamlining the jurisdictional review process and allowing land use decisions to be made without employing a team of lawyers to determine what puddles can be filled without a permit. The 2018 Rule provides a clearer demarcation of federal jurisdiction of waters and wetlands without hindering the rights of states to implement protections for other waters.

Since the passage of the federal Clean Water Act of 1972, filling of “waters of the United States” without a permit has been prohibited. The Act specifically mentions navigable waters and territorial seas, but the EPA and the Army Corps of Engineers quickly expanded the working definition of “waters of the United States” to include tributaries to such waters, as well as adjacent wetlands. Because the Act failed to provide a definition of “waters of the United States,” the EPA, the Army Corps of Engineers, landowners, and the courts have struggled to agree on what other waters are covered by the permit requirement. Since 1977, Brickhouse Environmental has been helping land owners and developers navigate the ever-changing rules and regulations.

In 1985 (US v. Riverside Bayview Homes), the Supreme Court ruled that the Army Corps was reasonable in expanding jurisdiction to cover wetlands adjacent to “waters of the United States.” In 2001, following further expansion, the Supreme Court held that the Army Corps could not reasonably claim jurisdiction over isolated wetlands based on their use by migratory birds (SWANCC v. US Army Corps of Engineers). In 2005, the Court created a standard to determine whether an isolated wetland had a “significant nexus” to “waters of the United States” before the Army Corps could claim jurisdiction (Rapanos v. US).

In 2015, in an attempt to clarify the definition and address the findings of Rapanos, the EPA issued a Clean Water Rule: Definition of “Waters of the United States.” The 2015 Clean Water Rule greatly expanded the scope of jurisdiction to include not only traditionally navigable waters, their tributaries and adjacent wetlands, and any other water that could be shown to have a “significant nexus” to other waters of the United States, but also included isolated waters, such as prairie potholes, Carolina bays, and vernal pools. The significant nexus determination would be case specific and could be interpreted to include ephemeral drainage ways that only see flow during rain events, and, in the extreme, could include sheet flow as well as channelized flow. The 2015 definition was immediately challenged and is still in legal limbo, in effect in 22 states (including PA, MD, DE, NJ, and NY), with the remaining states still operating under prior rules.

In 2017, the EPA issued notice to repeal the 2015 Rule and in December 2018, issued a revised Clean Water Rule with six categories of “waters of the United States:”

1. Traditionally navigable waters (rivers, canals, lakes, and seas used in interstate and foreign commerce)
2. Tributaries to navigable waters with intermittent or perennial flow
3. Ditches that meet the conditions of navigable waters or tributaries
4. Lakes and ponds that meet the conditions of navigable waters or that contribute intermittent or perennial flow to downstream waters
5. Impoundments of other waters of the US
6.Wetlands that physically touch other waters of the US, or that have a surface water connection in a typical year to other waters of the US

Excluded are groundwater, ephemeral features and stormwater runoff, ditches that are not navigable or are not themselves tributaries, prior converted cropland, artificially irrigated areas, artificial lakes and ponds constructed in uplands, depressions created in uplands incidental to mining or construction, stormwater control features constructed in uplands, wastewater recycling structures in uplands, waste treatment systems, and any other waters or water features not specifically listed as “waters of the United States.”

Following publication of the 2018 Clean Water Rule in the Federal Register, the EPA and Army Corps will be accepting public comments for a period of 60 days. More information can be found at https://www.epa.gov/wotus-rule.