Overview
The US Environmental Protection Agency and the US Army Corps of Engineers have released their long-awaited proposed rule redefining what constitutes "waters of the United States" (WOTUS) for purposes of the Clean Water Act (CWA). The pre-publication version released yesterday is 253 pages, and will be subject to a 60 day comment period once the proposal is published in the Federal Register. A final rule is expected sometime in 2019.
The proposal comes almost two years after the Trump Administration directed EPA to withdraw and replace the 2015 Obama-era WOTUS rule, which many had criticized as overly broad. The 2015 rule generally relied on Justice Kennedy's "significant nexus" test to cover any water with a significant effect on navigable waters. The 2015 rule was subject to numerous legal challenges across the nation, which led to a patchwork of stays of the rule. EPA is under pressure to finalize a new WOTUS rule, as the 2015 Obama-era rule is currently still in effect in numerous states.
Under yesterday's proposal, the following would be considered "waters of the United States":
-
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 jurisdictional waters; and
-
wetlands adjacent to jurisdictional waters.
The following would not be jurisdictional under the proposal:
-
waters not meeting one of the preceding jurisdictional categories;
-
ephemeral features, including ephemeral streams;
-
groundwater;
-
many ditches;
-
prior converted cropland;
-
stormwater control systems;
-
wastewater recycling structures; and
-
waste treatment systems.
Although we are still reviewing the proposal, there are a couple key points to highlight:
Adjacent wetlands. The proposal defines "adjacent wetlands" as wetlands that abut or have a direct hydrological surface connection to other "waters of the United States" in a typical year. "Abut" is proposed to mean when a wetland touches a jurisdictional water. A "direct hydrologic surface connection" would occur as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and jurisdictional water. As an example, EPA has stated that a wetland not directly touching another waterbody but which overflows into a jurisdictional tributary during the average spring would be considered jurisdictional. Wetlands physically separated from other waters of the United States by upland or barriers that lack a direct hydrologic surface connection are not adjacent under the proposal. By requiring a surface connection, this new definition would reject the approach taken in some cases that has allowed any hydrological connection to be sufficient to establish jurisdiction, such as can be established through tracer tests.
New "typical year" standard for wetlands and tributaries. The proposal limits the CWA's reach over tributaries and wetlands to those that contribute flow to navigable waterways in "a typical year." The typical year is a new term based on a waterbody's effects on navigable waterways in the average year over a 30-year period. EPA has stated that the new test is intended to comply with Supreme Court rulings on the scope of the CWA. The new test is apparently intended to implement Justice Scalia's suggested test that only "relatively permanent" waters that share a "continuous surface connection" to navigable waterbodies are jurisdictional. The proposal thus clarifies that "waters of the United States" do not include ephemeral features that flow only due to precipitation. This would represent a significant narrowing of the existing "significant nexus" standard.
Ditches. Ditches were another controversial issue under the 2015 rule, with conflicting decisions on when ditches were considered jurisdictional. EPA has now proposed that only limited ditches would be jurisdictional: those used for navigation, such as canals; those subject to the tides; those that drain wetlands into jurisdictional waters; and those constructed within a tributary or navigable water.
Groundwater. Although groundwater has never been considered WOTUS in and of itself, the proposal makes this explicit: "The agencies have never interpreted 'waters of the United States' to include groundwater and would continue that practice through this proposed rule by explicitly excluding groundwater." The proposal also clarifies that groundwater drained through subsurface drainage systems is not jurisdictional. This new clarifying language may be aimed in part at recent CWA citizen suits that have attempted to impose CWA liability over contaminants that move through groundwater. However, the issue of when groundwater migration can lead to CWA liability is being addressed separately both at EPA and in the courts. EPA is currently working on guidance on when groundwater contamination can lead to CWA liability, and the Solicitor General has been invited to submit briefing on the groundwater migration issue for two cases where cert petitions are pending.
Overall, the WOTUS proposal represents an important step towards clarifying the scope of the CWA and potentially reducing the number of projects subject to CWA permitting. Regulated entities have grappled with significant uncertainty since Supreme Court Justice Anthony Kennedy's 2006 concurring opinion in Rapanos v. United States that called for a case-by-case approach to identifying jurisdictional waters. While the redefinition of WOTUS could be significant, future challenges to final rule are a certainty, and the next couple months' comment period will lay the groundwork for that future litigation.
Please let us know if you would like more information regarding the new WOTUS definition, or would like assistance with preparing comments on the proposal.