Last week, the Federal Register officially published the
Environmental Protection Agency and Army Corps of Engineers final rule
establishing a new definition of “Waters of the United States” that are
protected by the Clean Water Act. The final rule is set to take effect 60 days
after publication, on June 22.
The new rule, called the “Navigable Waters Protection Rule:
Definition of Waters of the U.S.,” will narrow the scope of Federal
jurisdiction under the Clean Water Act. The rule will affect public agencies,
private property owners and other sectors within the water, infrastructure and
agricultural industries. The final rule will replace the 2015 “Clean Water
Rule,” which was repealed in December 2019.
On April 21, 2020, the EPA and U.S. Army Corps of Engineers
finalized a new definition of waters of the United States (sometimes called
“WOTUS”). This new definition has fundamental implications for the application
of point source permits under Section 402 (National Pollution Discharge
Elimination System) and dredge and fill permits issued under Section 404 of the
Clean Water Act.
The Clean Water Act regulates the quality of water by making
it illegal to discharge pollutants into navigable waters without a permit.
Determining precisely what waters that includes, however, has frankly been
complicated. The Clean Water Act defines “navigable waters” as the waters
of the United States, including territorial seas. The question continuously
debated is does that include water that pools at the bottom of an old quarry?
What about wetlands that are not navigable, but are adjacent to navigable
water? How about wetlands on private property that are a mile away from the
closest navigable stream? It turns out that all of those were included as
waters of the United States.
The question found its way to the U.S. Supreme Court in
Rapanos v. United States, which resulted in a 4-1-4 opinion. In the absence of
a statutory or regulatory definition, the plurality in Rapanos, defined the
term “waters of the United States” to also include “relatively permanent
standing or continuously flowing bodies of water” that are connected to
traditional navigable waters or wetlands that have a continuous surface with
such relatively permanent waters. Justice Kennedy, in a famous concurring opinion
gave us the significant nexus test, meaning wetlands or bodies of water were
included as waters of the United States if they “either alone or in combination
with similarly situated lands in the region, significantly affect the chemical,
physical, and biological integrity of other covered waters more readily
understood as ‘navigable.’”
The Court’s definition was cumbersome. Thereafter, in
2015, the EPA and Army Corps of Engineers issued a rule defining “waters of the
United States.” Under that rule certain waters were deemed to be
jurisdictional, including: (1) waters which are currently used, were used in
the past, or may be susceptible to use in interstate or foreign commerce,
including all waters which are subject to the ebb and flow of the tide; (2) interstate
waters and wetlands; (3) the territorial seas; (4) impoundments of waters
otherwise identified as jurisdictional; (5) tributaries of the first three
categories; and (6) adjacent waters. The rule excluded certain bodies of water,
like ditches, irrigated land, and stock tanks. The 2015 rule also left the door
open to other bodies of water that may be deemed waters of the United States on
a case by case basis such as isolated waters that are not connected to
navigable waters but are ecologically important (including California vernal
pools or prairie potholes).
Numerous states filed suit to prohibit the enforcement of
the 2015 definition, largely alleging that the rule was too expansive and
infringed upon private property rights and state sovereignty. The suits led to
preliminary injunctions barring the application of the rule. In February
2017, President Trump signed an executive order directing the EPA and Army
Corps to revise their definition, and the final rule is the result. The
new Waters of the United States definition expressly includes the following as
waters of the United States:
- The territorial seas,
and waters which are currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce, including waters
which are subject to the ebb and flow of the tide;
- Tributaries;
- Lakes and ponds, and
impoundments of jurisdictional waters; and
- Adjacent wetlands.
Not included as expressly referenced in the new rule
excluding certain waters and water features from the definition:
- Groundwater, including
groundwater drained through subsurface drainage systems;
- Ephemeral features,
including ephemeral streams, swales, gullies, rills, and pools;
- Diffuse stormwater
run-off and directional sheet flow over upland;
- Ditches that are not
“waters which are currently used, or were used in the past, or may be
susceptible to use in interstate or foreign commerce, including waters
which are subject to the ebb and flow of the tide;”
- Tributaries; and
- Non-ephemeral wetlands
that are adjacent to waters of the United States;
- Prior converted
cropland;
- Artificially irrigated
areas, including fields flooded for agricultural production, that would
revert to upland should application of irrigation water to that area
cease;
- Artificial lakes and ponds,
including water storage reservoirs and farm, irrigation, stock watering,
and log cleaning ponds, constructed or excavated in upland or in
nonjurisdictional waters, so long as those artificial lakes and ponds are
not impoundments of jurisdictional waters;
- Water-filled depressions
constructed or excavated in upland or in non-jurisdictional waters
incidental to mining or construction activity, and pits excavated in
upland or in nonjurisdictional waters for the purpose of obtaining fill,
sand, or gravel;
- Stormwater control
features constructed or excavated in upland or in non-jurisdictional
waters to convey, treat, infiltrate, or store stormwater runoff;
- Groundwater recharge,
water reuse, and wastewater recycling structures, including detention,
retention, and infiltration basins and ponds, constructed or excavated in
upland or in non-jurisdictional waters;
- Waste treatment systems.
Supporters of the new rule say that it lends certainty and
prevents federal overreach. Opponents point out that the new definition appears
to roll back federal protections against discharges of pollutants from a point
source. Several environmental interest groups have already begun plans to bring
suit challenging the new rule. However, this does not mean that these bodies of
water can have no environmental protection because states may still impose
their own regulations. Whether the definition will provide any certainty
may depend on whether it can withstand the upcoming challenges in the courts or
a potential change in administration. The 2015 rule did not.