Finalization of a New Rule Addressing the Clean Water Act Definition of Waters of the United States (WOTUS)

On January 23, 2020 the United States Environmental Protection Agency and United States Corps of Engineers announced the finalization of a new rule addressing the Clean Water Act definition of Waters of the United States (“WOTUS”).

The definition of WOTUS is considered to be one of the three critical jurisdictional terms in the Clean Water Act. It is also important because it is relevant to non-National Pollution Discharge Elimination System programs including:

• Section 404 of the Clean Water Act Wetland Permits
• Section 311 Oil/Hazardous Substances Release Requirements
• Clean Water Act Spill Prevention Control and Countermeasure Regulations

The scope of the definition of WOTUS has been the subject of frequent litigation, legislative oversight, rulemakings, and public policy debates since the enactment of the modern version of the Clean Water Act in 1972. This current version will also likely be met by lawsuits from environmental groups and some states while at the same time it is being championed by organizations representing farming and ranching interests, industry groups, and real estate development groups.

In a press release, EPA Administrator Andrew Wheeler announced that the through the new rule the “EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects. After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

According to the EPA, the revised WOTUS definition identifies four “clear” categories of waters that are federally regulated under the Clean Water Act which include:

• The territorial seas and traditionally navigable waters (referencing the Atlantic Ocean and Mississippi River);
• Perennial and intermittent tributaries (referencing College Creek which flows to the James River near Williamsburg, Virginia);
• Certain lakes, pounds, and impoundments (referencing Children’s Lake in Boiling Springs, Pennsylvania); and
• Wetlands that are adjacent to jurisdictional waters

Under the new rule, the following waters are not subject to Clean Water Act jurisdiction:

• Features that only contain water in direct response to rainfall;
• Groundwater;
• Many ditches including most farm and roadside ditches;
• Prior converted cropland;
• Farm and stock watering ponds; and
• Waste treatment systems

The new rule also addresses additional issues related to Clean Water Act jurisdiction including:

• Removal of proposed separate categories for jurisdictional ditches and impoundments;
• Revising the proposed definition of “typical years” which EPA states provides regional and temporal flexibility (which is said to be inserted to ensure jurisdiction is being accurately determined in times that are not too wet and not too dry); and
• Defines adjacent wetlands as wetlands that are meaningfully connected to other jurisdictional waters (citing as an example those directly abutting or having regular surface water communication with jurisdictional waters)

What does this mean to the practical application of the rule?

The new rule eliminates Clean Water Act protections for more than 18% of our streams and a majority of the nation’s wetlands. It removes protections for ephemeral streams, which flow only after rain or during snowmelt. Hydrologists note that although these streams are often dry, there are times during the year where torrential downpours rain or snowmelt can carry significant pollutants downstream into more consistently flowing waterways, impacting recreation areas and drinking water intakes. According to the U.S. Geological Survey, ephemeral streams account for more than 18% of waterways nationwide but are more common in the arid West: accounting for more than 85% of the streams in Nevada. The rule also removes protections for wetlands that do not have surface water connections to intermittent or perennial streams, which account for more than 51% of the nation’s wetlands. Wetlands are important because they function as our “kidneys”, filtering pollution, buffering stormwater, and absorbing floodwaters, as well as providing critical habitat for wildlife, recreation, and shoreline erosion control, among others.

In the middle of the challenges to craft an appropriate scope for WOTUS, it should be noted that delegated states have their own statutes to authorize environmental regulatory activities. And, many of these states have jurisdictional definitions that may be broader than the corresponding federal terms.

View the pre-publication rule and preamble at epa.gov/nwpr/final-rule-navigable-waters-protection-rule.