The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) on Dec. 11, 2018, issued a long-awaited proposed rule to define "Waters of the United States" (WOTUS) pursuant to the Clean Water Act (CWA).1 The WOTUS Rule sets forth the geographic reach of the agencies' authority to regulate streams, wetlands and other water bodies pursuant to the CWA. The Proposed Rule would replace one of the most controversial of the Obama Administration's environmental regulations, which was viewed by many as a vast overreach of federal jurisdiction. The 2015 Obama WOTUS rule sits in regulatory purgatory, having been challenged by states and private interests in multiple district courts across the country.2 Comments to the Proposed Rule are due within 60 days after it is published in the Federal Register, which has not yet occurred.
Replacing the 2015 definition of WOTUS has been a priority of President Donald Trump since he took office. On Feb. 28, 2017, President Trump signed an Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule," which directed the agencies to begin the process of rescinding or revising the WOTUS Rule (see 82 Fed. Reg. 12497). Then hinting of what was to come, the Executive Order states that the revised WOTUS rule will be written in a manner consistent with the plurality U.S. Supreme Court opinion of the late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).3 The Scalia opinion provides that only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams, oceans, rivers and lakes' "qualify as waters of the United States that are subject to regulation under the CWA. His opinion specifically excludes for CWA jurisdiction "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." Rapanos at 739.
The stated intention of the Proposed WOTUS Rule is "to increase CWA program predictability and consistency by increasing clarity as to the scope of 'waters of the United States' federally regulated under the Act." While described as an "outgrowth" of other rulemakings and comments, the Proposed Rule has certain fundamental differences with the 2015 Obama Rule. Perhaps the best way to understand the differences is that while the Proposed WOTUS Rule follows the Scalia interpretation under Rapanos, the Obama iteration followed Justice Anthony Kennedy's concurring opinion from Rapanos, asserting that the non-navigable waters that could be regulated are those that have a "significant nexus" to a navigable water. Under that standard, a waterway or wetland is evaluated to determine whether it impacts the "chemical, physical, and the biological integrity" of a navigable water, either alone or in combination with similarly situated lands in the region. Rapanos at 717. The "significant nexus" test required a case-specific showing of a nexus with a primary water but was so broad as to allow the agencies to sweep in just about every type of water. The 2015 Obama Rule also broadly defined the term "neighboring" to include by default all waters within set distances of traditionally jurisdictional waters, such as all waters within the 100-year floodplain and not more than 1,500 feet from the ordinary high-water mark. Under the 2015 Rule, an entire water was considered neighboring and therefore jurisdictional if even a small portion of it fell within one of these defined distances.
At its base, the Proposed WOTUS Rule proposes to interpret the term "waters of the United States" to encompass: traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters. The Proposed Rule addresses each of these base types of waters, explaining how the scope of jurisdiction will be interpreted for each.
On the other hand, the Proposed Rule specifically clarifies that "waters of the United States" do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior converted cropland4; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater runoff; wastewater recycling structures constructed in upland; and waste treatment systems.
The term "tributary" is defined in the Proposed Rule to include "a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other tributaries, jurisdictional ditches, jurisdictional lakes and ponds, jurisdictional impoundments, and adjacent wetlands or through water features ... so long as those water features convey perennial or intermittent flow downstream." Unlike the 2015 Rule, this definition does not include ephemeral flows and features, which are dry most of the year and only have water due to precipitation. In contrast, the term "perennial" means "surface water flowing continuously year-round during a typical year" and "intermittent" means "surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation." Under the Proposed Rule a tributary that does not contribute perennial or intermittent flow to a traditional navigable water or territorial sea in typical year is not subject to regulation under the CWA.
The Proposed WOTUS Rule clarifies that a tributary does not lose its status if it flows through a culvert, dam, or other similar artificial break or through a debris pile, boulder field, or similar natural break so long as the artificial or natural break conveys perennial or intermittent flow to a tributary or other jurisdictional water at the downstream end of the break.
The term "ditch" is defined to mean "an artificial channel used to convey water." Under the Proposed Rule, ditches are generally proposed not to be "waters of the United States" unless they meet certain criteria, such as functioning as traditional navigable waters, if they are constructed in a tributary and also satisfy the conditions of the proposed "tributary" definition, or if they are constructed in an adjacent wetland and also satisfy the conditions of the proposed "tributary" definition. As noted above, the Proposed Rule would exclude most ditches dug in uplands or for the purpose of conveying water.
Finally, the Proposed Rule addresses the concept of "adjacent" wetlands. Under the Proposed Rule "adjacent wetlands" are defined to include "wetlands that abut or have a direct hydrologic surface connection" to a regulated water "in a typical year." The term, "abut" is further defined to mean "to touch at least at one point or side of a" regulated water. In turn, "a direct hydrologic surface connection occurs as a result of inundation" from jurisdiction water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water. Thus, both definitions require an actual connection. The Proposed WOTUS Rule clarifies that wetlands "physically separated" from a water "by upland or by dikes, barriers, or similar structures and also lacking a direct hydrologic surface connection to such waters are not adjacent." The Proposed WOTUS rule would clarify that a mere hydrologic connection in itself may not establish jurisdiction, noting that the fact that a wetland may be connected to the navigable water by flooding, on average, once every 100 years does not satisfy the proposed "adjacent wetlands" definition. This is a direct divergence from the 2015 Obama Rule, which regulated wetlands without connections to traditional waters if they were located within 1,500 feet of a high-water mark and within a 100-year floodplain.
As written, the Proposed WOTUS Rule would modestly scale back the categories of waters subject to the CWA, consistent with the Scalia Rapanos opinion and other case law. Furthermore, the Proposed Rule provides examples of waters that are specifically excluded that will provide clarity to the regulated community and the regulators alike. This will likely bring a welcome reduction to the time it takes the agencies to make a determination of jurisdiction. In the interim, the Army Corps and EPA have indicated their intent to revert to the pre-2015 regulations, which are further interpreted by agency guidance on Rapanos.
Some of the Trump Administration's early regulatory rollbacks were vulnerable due to their ambitious legal goals, but the Proposed WOTUS Rule appears to be different. It is well-reasoned, fairly modest in its regulatory goals, and written carefully to fit within the confines of Justice Scalia's opinion in Rapanos and other case law. Although the Proposed Rule – like virtually all new rules – will undoubtedly be challenged in court, it has a good chance of ultimately being upheld.
1 Federal Water Pollution Control Act, 33 U.S.C. §1251 et seq.
2 Supreme Court Makes Jurisdictional Determination on Clean Water Act Rule (Holland & Knight alert, Feb. 2, 2018)
3 "Waters of the United States" Rule Among the First on Trump's Chopping Block (Holland & Knight Energy and Natural Resources Blog, March 6, 2017)
4 The Proposed Rule seeks to clarify and define the terms "prior converted cropland" and "waste treatment system" to improve regulatory predictability and clarity. The concept of what is an unregulated "prior converted cropland" has been the subject of much confusion and debate.
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