On May 29, 2015, the Obama administration released the final version of its highly controversial Clean Water Rule. President Obama declared that the new rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.” Republicans do not agree with the President’s sentiment, as was quickly made clear by House Speaker John Boehner, who sees the Clean Water Rule as “a raw and tyrannical power grab that will crush jobs.”
The main point of the Clean Water Rule is to define the scope of waters protected under the Clean Water Act (CWA). If a water is protected under the CWA, any person who discharges pollutants into that water needs a CWA permit. Likewise, operations that would dredge or fill a water under CWA jurisdiction also need permits.
The CWA limits its jurisdiction to “navigable waters”, which are defined obliquely as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1361(7). The Supreme Court has been called on over the years to help interpret what Congress intended to include as “waters of the United States”, most recently in Rapanos v. United States, 547 U.S. 715 (2006). The Supreme Court struggled with this definition, evidenced by the plurality opinion in Rapanos, but what has emerged from that struggle were two clear points: (1) waters of the United States includes some waters that are not navigable in fact; and (2) non-navigable waters must have a “significant nexus” to traditional navigable waters to be covered under the CWA authority. EPA and the Army Corps of Engineers have promulgated the Clean Water Rule in order to clarify these jurisdictional rules.