Definition of Waters of the US Still in Limbo

How do I know if my stream or wetland is federally protected?

Many people who are experienced in land development know that obtaining a federal permit to place fill materials into rivers, streams, lakes, and wetlands can be a confusing and at times, costly endeavor.  Section 404 of the Clean Water Act (CWA) regulates the discharge of dredge or fill material into many water bodies, but not all. To be protected by the CWA, a water body must meet the definition of “waters of the U.S.”.

Rapanos v. United States set the definition of waters of the U.S. from 2006 to 2015

Between 2006 and 2015, the definition of “waters of the U.S.” was based on the the U.S. Supreme Court ruling in  Rapanos v. United States 574 U.S. 715 (2006).  In the late 1980s, Mr. Rapanos filled 22 acres of wetland that he owned, without a permit. He argued that the land did not contain waters of the U.S. because it was located up to 20 miles from any navigable waterways. USEPA disagreed, and the Rapanos case ultimately found its way to the United States Supreme Court. 

Chief Justice Antonin Scalia, wrote the plurality opinion in Rapanos v. United States. He stated that the Clean Water Act confers federal jurisdiction over non-navigable waters only if the waters exhibit a relatively permanent flow, such as a river, lake, or stream. He further wrote  that a wetland falls within the Corps' jurisdiction only if there is a continuous surface water connection between it and a relatively permanent waterbody, and it is difficult to determine where the wetland begins and the waterbody ends.  Based on this decision, USEPA and the US Army Corps of Engineers identified jurisdictional wetlands as any wetland that possessed a relatively permanent surface water connection to a traditionally navigable water.     

In 2015, the Obama Administration redefines waters of the U.S.

In May 2015, the Obama administration published the 2015 Waters of the US Rule (2015 Rule), which  sought to provide clarity and certainty regarding which rivers, streams, lakes, and wetlands would be protected by the CWA. Soon after its release, the proposed rule met strong opposition from many in the regulated community, who contended that the government was seeking to regulate many more water bodies that were not previously regulated under Justice Scalia’s interpretation Rapanos v. United States.

Thirteen states sued to block the implementation of the 2015 Rule.  On August 27, 2015, U.S. Chief District Judge Ralph R. Erickson issued an injunction, granting those states’ wishes. On October 9, 2015, the US Court of Appeals, Sixth Circuit stayed the rule's application nationwide. Since then, all wetlands have been evaluated to determine whether they meet the definition of “waters of the U.S.”  as they had been since Rapanos v. United States.

Trump Administration seeks a new definition for waters of the U.S.

On February 28, 2017, President Donald Trump Issued an Executive Order directing USEPA and the Department of the Army to review and rescind or revise the 2015 Rule. Since then, both agencies have been  reviewing the 2015 Rule and considering a revised definition of "waters of the U.S.". On January 31, 2018, both agencies signed a final rule that will allow them to use  the pre-2015 definition of “waters of the U.S.”, until at least February 6, 2020, when the definition of “waters of the U.S.” will be finally revised and put into regulation.  On February 6, 2018, nine states, the Commonwealth of Massachusetts, and the District of Columbia filed suit in the US District Court, asking the court to vacate the Trump Administration’s suspension of the 2015 Rule and declare the action unlawful. So the uncertainty continues.

Davey Resource Group can help

What does this mean for your project?  Unless the US District Court decides to stay the suspension of the 2015 Rule, the US Army Corps of Engineers will continue to evaluate wetlands to determine whether they are protected by the CWA as they had prior to the 2015 Rule.  The Professional Wetland Scientists and regulatory specialists at Davey Resource Group have extensive experience working with clients on a wide variety of wetland issues and waterways permits. We can assist you with the identification of wetlands and streams on your property, help you determine whether the US Army Corps of Engineers will consider the wetlands and/or streams “waters of the U.S.”, and provide guidance and assistance for your permitting needs. We take our responsibilities to assist our clients and keep up with the changing regulatory climate very seriously. 

If you are planning to develop your property, contact Greg Snowden or John Kusnier and let us help you navigate the waterways permitting process.

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