Waters of the United States: Understanding Definitions and Jurisdictional Determinations Specific to Shale Resource Development

Abstract

Clean water is a valuable natural resource and is relied on for drinking, agriculture, recreation, manufacturing, energy development, tourism, and many other purposes that are essential to the public and the economy. The Clean Water Act (CWA) is the primary legislative instrument used to protect this resource but over the past decade, interpretations of Supreme Court rulings have clouded definitions of of the United States (WOUS) and caused confusion about which waters and wetlands remain under the jurisdictional control of the U.S Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA). To clarify protection of waters and wetlands the EPA and the USACE drafted guidance to sort out what the CWA covers and what may now lie beyond its reach. The guidance provides procedures for identifying waters and wetlands protected under the CWA with a focus toward protecting small waters that feed into large waters, so that downstream waters are safe from upstream pollutants. The guidance also reaffirms protection for wetlands that filter pollution and store water. The agencies propose to finalize the guidance and to continue work on a rulemaking. This paper will analyze the final guidance, definitions, and jurisdiction determination procedure and how these affect the development of well pads, impoundments, access roads and water used for oil and gas development within shale plays. The central subject of this paper is to what extent does the final guidance allow the CWA to cover non-traditional, non- navigable wetlands and streams within shale plays, and how such guidance can be used to determine jurisdictional authority using existing scientific literature and ground truthing tools. The paper is intended to assist operators faced with a jurisdictional question involving a wetland or stream to understand what factors will allow them to determine CWA jurisdiction.