New Developments in Federal Jurisdiction Over Our Nation’s Waters

Bradley Arant Boult Cummings LLP
Carly Miller and Joel M. Kuehnert

June 8, 2015

On May 27, 2015, the Environmental Protection Agency (EPA) released the Waters of the U.S. Final Rule under the Clean Water Act (CWA). This is an expansion by the Obama Administration of the federal protection of U.S. waterways and drinking water supplies. Many view this new rule as expanding the U.S. Army Corps of Engineers’ (Corps) and the EPA’s jurisdiction over waters that had not previously been considered “Waters of the U.S.,” and therefore subject to federal regulation.

President Obama announced this sweeping new regulation in an effort to restore the federal government’s authority to limit pollution in the nation’s rivers, lakes, streams, and wetlands. This regulation is part of a broader effort by the Obama Administration to use executive authority to build a major environmental legacy, without requiring new legislation from Congress.

Farmers, property developers, and oil and gas producers contend that the new rule will stifle economic growth and intrude on the rights of businesses and property owners. The President of the National Federation of Independent Business opined that the new rule “gives the EPA and the Army Corps of Engineers new power to regulate local projects and local business operations, and it creates for the trial lawyers and the environmental activists a whole new class of potential defendants.”

Various industry groups are already preparing lawsuits to challenge the rule, and the battle may end up before the Supreme Court. Farming groups fear that the rule could impose major new costs and burdens, requiring them to obtain permits and pay fees for environmental assessments. The National Association of Home Builders contends that the rule will increase housing costs and regulatory burdens to landowners. Environmentalists, on the other hand, praise the rule, deeming it an important step that will lead to significantly cleaner natural bodies of water.

The EPA and the Corps jointly proposed the rule last spring. The EPA held more than 400 meetings about it and read more than one million public comments in drafting the final language. Two Supreme Court decisions related to clean water protection, in 2001 and 2006, created legal confusion about whether the federal government had the authority to regulate the smaller streams and other water sources such as wetlands.

EPA officials say the new rule will clarify that authority, allowing the government to once again limit pollution in those smaller bodies of water. The EPA also contends that the new rule will not give it the authority to regulate additional waters that had not been covered originally under the 1972 law. Under the new rule, tributaries and headwaters that show physical features of flowing water—a bed, bank, and high-water mark—as well as waters that are next to rivers and lakes and their tributaries, would be subject to federal regulation.

This final regulation to the CWA is of crucial interest to many of our clients in various industries. The change has a potentially large impact on the construction, real estate development, oil and gas, pipeline, and mining industries. Bradley Arant Boult Cummings LLP is consulting with clients regarding these changes.

Joel Kuehnert is a partner in the Environmental practice group at Bradley Arant Boult Cummings. He has extensive experience in the context of litigation and environmental compliance on a variety of issues arising under both state and federal law. Joel has represented clients in a broad range of environmental matters, including Clean Water Act litigation, interstate water disputes, and matters before Alabama’s Environmental Management Commission. He can be reached at

Carly Miller is an associate in the Litigation, Energy, and Construction and Procurement practice groups at Bradley Arant Boult Cummings. She represents clients in a variety of industries, particularly in construction, energy, and government contracting. She can be reached at

This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Kuehnert & Ms. Miller and may not reflect the opinions of Synergy Environmental, Inc., Bradley Arant Boult Cummings LLP or either of those firms’ clients.




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