June 3, 2015
Overview of EPA and the Army Corps’ Rule to Define “Waters
of the United States”
Overview: What Is It?
it was not finalized, but it was the substantive basis for the
2014 proposed rule.
On May 2014, the Army Corps of Engineers (the Corps)
and the Environmental Protection Agency (EPA) finalized
What’s in the Final Rule?
revised regulations that define the scope of waters protected
under the Clean Water Act (CWA). Discharges to waters
The final rule retains much of the structure of the agencies’
under CWA jurisdiction, such as the addition of pollutants
existing definition of “waters of the United States.” It
from factories or sewage treatment plants and the dredging
focuses particularly on clarifying the regulatory status of
and filling of spoil material through mining or excavation,
waters located in isolated places in a landscape and streams
require a CWA permit. The legal and policy questions
that flow only part of the year, along with nearby wetlands,
regarding the outer geographic limit of CWA jurisdiction
the types of waters with ambiguous jurisdictional status
and the consequences of restricting or expanding that scope
following the Supreme Court’s rulings. Like the 2003 and
have challenged regulators, landowners, developers, and
2008 guidance documents and the 2014 proposal, it
policy makers for over 40 years.
identifies categories of waters that are and are not
jurisdictional, as well as categories of waters that require a
What Is the Current Status?
case-specific evaluation.
• Under the final rule, all tributaries to the nation’s
The revised rule will become effective 60 days after
traditional navigable waters, interstate waters, the
publication in the Federal Register, which has not yet
occurred, to allow time for review under the Congressional
territorial seas, or impoundments of these waters would
be jurisdictional per se. All of these waters are
Review Act. Legal challenges to the rule can be filed on the
jurisdictional under existing rules, but the term
date two weeks after publication in the Federal Register.
“tributary” is newly defined in the rule.
Background of the Rule
• Waters—including wetlands, ponds, lakes, and similar
waters—that are adjacent to traditional navigable
The CWA protects “navigable waters,” a term defined in
waters, interstate waters, the territorial seas,
the act to mean “the waters of the United States, including
jurisdictional tributaries, or impoundments of these
the territorial seas.” Waters need not be truly navigable to
waters would be jurisdictional by rule (i.e., no case-
be subject to CWA jurisdiction. The act’s single definition
specific evaluation would be required). The final rule for
of “navigable waters” applies to the entire law, including
the first time puts some boundaries on “adjacency.”
the federal prohibition on pollutant discharges except in
•
compliance with the act (§301), permit requirements (§§402
Some waters—but fewer than under current practice—
would remain subject to a case-specific evaluation of
and 404), and enforcement (§309). The CWA gave the
whether or not they meet the legal standards for federal
agencies the authority to define the term “waters of the
United States” in regulations, which EPA and the Corps
jurisdiction established by the Supreme Court.
have done several times, most recently in 1986.
• The final rule identifies a number of types of waters to
be excluded from CWA jurisdiction. Some restate
Revisions to the Corps’ and EPA’s regulations were
exclusions under current rules (e.g., prior converted
proposed in 2014 in light of two Supreme Court rulings
cropland); some have been excluded by practice and
(Solid Waste Agency of Northern Cook County v. U.S. Army
would be expressly excluded by rule for the first time
Corps of Engineers, 531 U.S. 159 (2001); and Rapanos v.
(e.g., groundwater and some ditches). Some are new in
United States, 547 U.S. 716 (2006)) that interpreted the
the final rule (e.g., stormwater management systems).
regulatory scope of the CWA more narrowly than
The rule makes no change and does not affect existing
previously, and created uncertainty about the appropriate
statutory exclusions: exemptions for normal farming,
scope of waters that are protected by the CWA.
ranching, and silviculture practice and for maintenance
of drainage ditches (CWA §404(f)), as well as for
The agencies issued guidance in 2003 and 2008 to lessen
agricultural stormwater discharges and irrigation return
confusion over the Court’s rulings. The non-binding
flows (CWA §402(l)).
guidance sought to identify, in light of those rulings,
categories of waters that remain jurisdictional, categories
Issues and Controversy
not jurisdictional, and categories that require a case-specific
analysis to determine if CWA jurisdiction applies. The
The rule has been and remains highly controversial. The
Obama Administration proposed revised guidance in 2011;
agencies’ intention in proposing it was to clarify questions
www.crs.gov | 7-5700

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Overview of EPA and the Army Corps’ Rule to Define “Waters of the United States”
of CWA jurisdiction, in view of the Supreme Court’s
Officials of the Corps and EPA have vigorously defended
rulings while reflecting the agencies’ scientific and
the proposed rule. But they acknowledged that it raised
technical expertise. Much of the controversy since the
questions that required clarification in the final rule. They
Court’s rulings has centered on the many instances that
believe that the rule announced on May 27 does not protect
have required applicants for CWA permits to seek a time-
any new types of waters that have not been protected
consuming case-specific evaluation to determine if CWA
historically, that it does not exceed the CWA’s coverage
jurisdiction applies to their activity, due to uncertainty over
and that it would not enlarge jurisdiction beyond what is
the geographic scope of the act. The agencies’ stated
consistent with the Supreme Court’s current reading of
intention was to clarify jurisdictional questions by clearly
jurisdiction and consistent with scientific understanding of
articulating categories of waters that are and are not
connections between small streams and downstream waters.
protected by the CWA and thus limiting the types of waters
If the proposed rule were withdrawn or adoption of a new
that still require case-specific analysis.
rule were delayed, they note, the confusing status quo
would remain in place, although some critics of the
Industries that are the primary applicants for CWA permits
proposed rule said that they preferred the status quo. EPA
and agriculture groups (although farms are exempt from
and the Corps assert that the final rule addresses criticisms
most permitting) raised numerous objections over how
of the proposal, such as: defining tributaries more clearly,
broadly they fear that the proposed rule would be
better defining how protected waters are significant, and
interpreted. Many urged that it be withdrawn. Because
preserving CWA exclusions and exemptions for agriculture.
definitions often are key to interpreting statutory law and
Based on press reports of stakeholders’ early reactions to
regulations, critics contended that the proposed new
the final rule, some believe that the agencies largely
definitions were ambiguous and would enable broader
succeeded in their objective to clarify the rule, while others
assertion of CWA jurisdiction than is consistent with law
believe that they did not.
and science. The final rule adds new definitions of key
terms, such as “tributary” and “significant nexus,” and
Congressional Interest
modifies parts of the proposal in an effort to provide more
clarity. Agriculture has been concerned that the rule would
Congressional interest in the rule has been strong. On
modify existing CWA exemptions for agricultural practices.
February 4, 2015, the Senate Environment and Public
The rule does not affect or alter these exclusions.
Works Committee and the House Transportation and
Infrastructure Committee held a joint hearing on impacts of
Some local governments also criticized the rule. They point
the proposed rule on state and local governments, hearing
out that localities own and maintain public infrastructure
from agency and public witnesses, and other Senate and
including roadside ditches, flood control channels, and
House committee hearings also have been held.
stormwater management structures. Because the rule would
define some ditches as “waters of the United States” if they
On May 12, the House passed legislation to require EPA
meet certain conditions, while excluding other ditches,
and the Corps to start a new rulemaking (H.R. 1732). A
these local governments contend that the proposal
related bill in the 114th Congresss is S. 1140; it would
potentially increased the number of locally-owned ditches
provide principles to be included in a new rule. Other bills
under federal jurisdiction. EPA and Corps officials believed
also have been introduced. The 113th Congress took one
that the proposed exclusion of most ditches actually
legislative action, enacting a provision in the Consolidated
decreases federal jurisdiction, but the issue remained
and Further Continuing Appropriations Act, 2015 (P.L.
controversial. The final rule expressly excludes stormwater
113-235) directing EPA and the Corps to withdraw an
management systems and structures from jurisdiction.
interpretive rule on agriculture exemptions from CWA
permitting that is related to but separate from the proposed
Many states and state environmental agencies have
“waters of the United States” rule, which had confused and
expressed support for a rule to clarify the scope of CWA
been controversial with the agriculture sector. The agencies
jurisdiction, but there was no state consensus on the Corps-
did withdraw the interpretive rule on January 29, 2015.
EPA proposal or on whether it should be withdrawn. Some
P.L. 113-235 did not include any policy provision on the
were generally supportive, but others believed that the
“waters of the United States” proposal itself.
agencies did insufficient consultation with the states prior to
proposing the rule. States, they point out, are co-regulators
For additional information, see CRS Report R43455, EPA
of the CWA with EPA, making determinations of federal
and the Army Corps’ Rule to Define “Waters of the United
jurisdiction equally important to states as to industry.
States”; CRS Report R43943, EPA and the Army Corps’
Proposed “Waters of the United States” Rule:
Environmental groups defend the agencies’ efforts to
Congressional Response and Options; and CRS Report
protect U.S. waters and reduce frustration resulting from
IN10212, Withdrawal of the EPA-Army Corps Interpretive
unclear jurisdiction of the CWA. Still, some of them argued
Rule for Agriculture.
that the proposed rule should be strengthened, for example
by designating additional categories of waters and wetlands
Claudia Copeland, ccopeland@crs.loc.gov, 7-7227
such as prairie potholes as categorically jurisdictional. The

final rule did not do so; instead, such waters will require
case-specific analysis to determine if jurisdiction applies.
IF10125
www.crs.gov | 7-5700

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