On December 11, 2018, the United States Environmental Protection Agency (EPA) published a proposed rule to revise the definition of Waters of the United States (WOTUS) under the Clean Water Act (CWA) in a manner that would narrow the federal government’s jurisdiction over certain wetlands and waterways. If finalized, the proposed rule could resolve significant uncertainty regarding the applicable regulatory standard for defining WOTUS while significantly limiting the extent of federal jurisdiction under the CWA.
The definition of WOTUS has always been somewhat of a moving target due to shifting interpretations over the years by the U.S. Supreme Court, most recently in the case of Rapanos v. United States, 547 U.S. 715 (2006), which was decided without a majority opinion. The “significant nexus” test put forth by Justice Kennedy in his concurring opinion became the de facto standard for determining federal jurisdiction until the Obama Administration issued a new rule clarifying the definition of WOTUS in 2015. The 2015 Clean Water Rule was seen as a significant expansion of the extent of federal jurisdiction under the CWA, and it was promptly challenged in numerous lawsuits in multiple jurisdictions.
Shortly after taking office in early 2017, President Trump issued an Executive Order instructing the EPA and U.S. Army Corps of Engineers (USACE) to review and rescind or revise the 2015 Clean Water Rule. Pursuant to this Executive Order, the EPA and USACE have promulgated multiple rules seeking to rescind and delay implementation of the Obama rule. These regulatory actions have not been finalized and have themselves been subject to substantial litigation. At present, due to a patchwork of court rulings, the 2015 Clean Water Rule remains in effect in 22 states, while the EPA and USACE’s decision to delay implementation of the 2015 rule remains effective in 28 states. In those 28 states, EPA has indicated that the currently applicable definition of WOTUS is the definition originally promulgated in 1986/1988 that has subsequently been interpreted in multiple Supreme Court decisions including Rapanos and several EPA/USACE guidance documents. The confusion has been such that EPA has published a map on its website showing which definition applies in each state.
The newly proposed WOTUS rule would significantly rein in the expansion of federal jurisdiction under the 2015 Clean Water Rule. It would also narrow federal jurisdiction in comparison to Justice Kennedy’s “significant nexus” test, imposing clear limits to federal jurisdiction that are closer to, but still slightly broader than, the test set forth in Justice Scalia’s plurality opinion in Rapanos - a benchmark that many in industry advocated for as a more appropriate standard. Generally, the proposed rule focuses the definition of WOTUS on “relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters.“
The following are some highlights of the changes to federal jurisdiction proposed in the WOTUS rule in comparison to the 2015 Clean Water Rule and pre-2015 practice:
- Interstate waters – No longer per se jurisdictional. Under the proposed rule interstate waters will only be jurisdictional to the extent they fall within another jurisdictional category.
- Tributaries – Under the proposed rule, rivers and streams that contribute perennial or intermittent flow to downstream traditional navigable waters are jurisdictional tributaries. Ephemeral features that flow only in response to precipitation would be categorically non-jurisdictional, a significant change from the 2015 Clean Water Rule and pre-2015 practice.
- Ditches – Artificial channels used to convey water will only be jurisdictional under the proposed rule where they are traditional navigable waters or are subject to the ebb and flow of the tide. They can also be jurisdictional to the extent they satisfy conditions of the tributary definition and either (1) were constructed in a tributary or (2) were built in adjacent wetlands. EPA has indicated that it expects that fewer ditches will be jurisdictional under the proposed rule, as ephemeral ditches and ditches constructed in uplands will no longer be subject to CWA jurisdiction.
- Lakes and Ponds – These water bodies were not considered as a separate jurisdictional category in the 2015 Clean Water Rule or pre-2015 practice. Under the proposed rule, lakes and ponds are identified as being jurisdictional where they are traditional navigable waters or contribute perennial or intermittent flow to a traditional navigable water. EPA has indicated it expects fewer lakes and ponds will be considered jurisdictional under the proposed rule, as certain isolated lakes and ponds will no longer qualify as “adjacent.”
- Impoundments – No change. Impoundments of jurisdictional waters would remain jurisdictional under the proposed rule.
- Adjacent Wetlands – Under the proposed rule, wetlands must either abut jurisdictional waters or have a direct hydrological surface connection to jurisdictional waters to be considered adjacent, and thus jurisdictional. Wetlands that are physically separated from other jurisdictional waters by a berm, dike, or other barrier are not “adjacent” under the proposed rule. This marks a significant change from the 2015 Clean Water Rule, which explicitly allowed for wetlands separated by dikes or other barriers to be considered “adjacent” and thus jurisdictional provided they fell within specified distances of jurisdictional waters. It is also represents a clear rejection of the “significant nexus” test, which did not require a direct surface connection to establish jurisdiction.
Further insight into the issues and distinctions raised in the proposed WOTUS rule will become available as we and others in the legal community continue to parse the approximately 250-page proposal. The proposed rule will remain out for public comment for 60 days following its publication in the Federal Register, and it could be significantly revised or changed prior to being finalized. In the meantime, until a final WOTUS rule is issued, the definition of WOTUS and the extent of federal CWA jurisdiction will continue to vary by state, and CWA enforcement will continue on that basis. However, we expect that many potential permit applicants with projects that may be affected by the proposed rule will choose to wait it out until POTUS’ new WOTUS rule becomes final.