On December 11, 2018, the Environmental Protection Agency (“EPA”) and the Department of the Army (“DOA”) (“Agencies”) released their much-anticipated Notice of Proposed Rulemaking (“Proposed Rule”), which if adopted would scale back the jurisdictional reach of the Clean Water Act (“CWA”) by narrowing the definition of “Waters of the United States” (“WOTUS”) to include only those waters that are oceans, rivers, streams, lakes, ponds, and wetlands, and their “naturally occurring surface water channels.” The practical implications for project proponents of the Proposed Rule are that ephemeral streams and many ponds and ditches used in agricultural, industrial and construction activities would no longer be within the jurisdictional reach of the CWA, alleviating the requirement for and uncertainty surrounding permitting requirements and related mitigation measures. The next step in the Proposed Rule’s process is publication in the Federal Register, after which the Agencies will accept public comments on the proposal until 60 days after Federal Register publication.
In 2015, the Obama Administration’s EPA promulgated an expansive new definition of WOTUS, Final Rule, 90 Fed. Reg. 37,054 (June 29, 2015) (“2015 Rule”), which significantly increased the jurisdictional reach of waters afforded CWA protection from the prior rule, adopted in 1986. The 2015 Rule was estimated to envelop nearly 60 percent of the nation’s waterbodies as it provided coverage for waterways and wetlands that had a “significant nexus” to traditionally jurisdictional waters. This reasoning followed Justice Kennedy’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006).
The new Proposed Rule seeks to change the 2015 Rule by adopting the reasoning of the late Justice Antonin Scalia’s plurality opinion in Rapanos, which described the reach of the CWA as limited to those waters with a “continuous surface connection” with a traditional navigable water that makes it “difficult to determine where the ‘water’ ends.” Based on Scalia’s plurality in Rapanos, the Proposed Rule describes narrowly defined categories of connected surface waters and explains how, if adopted, the jurisdictional status of the CWA will be affected for each category:
- Impoundments: The Proposed Rule does not change the current reach of the CWA concerning impoundments—which dates back to regulations adopted in 1986 regulation (except where jurisdiction is affirmatively relinquished as noted below). If a particular waterbody is considered WOTUS under the Proposed Rule, impoundments within the waterbody (i.e., a dam that impounds water on a major river) will continue to have no bearing on whether the waterbody qualifies as WOTUS, despite the impoundment causing a break in the water flow.
- Interstate Waters: The 2015 Rule interpreted WOTUS as including waterbodies that span state lines. The Proposed Rule provides that the interstate nature of a waterbody will not automatically provide for the classification of that water as WOTUS. Instead, interstate waters must qualify as “navigable waters” or possesses the requisite surface connection under the Proposed Rule to be considered WOTUS.
- Tributaries: Under the Proposed Rule, tributaries remain a category of jurisdictional waters subject to the CWA. However, the Proposed Rule defines tributaries to mean 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 jurisdictional waters, such as other tributaries, impoundments, and adjacent wetlands or through water features. . . so long as those water features convey perennial or intermittent flow downstream.” Unlike the 2015 Rule that would employ the “significant nexus” test to each waterbody to determine WOTUS coverage, this definition would categorically exclude flows into certain ditches (discussed below) or waste treatment system, as well as waters that are “ephemeral” and not perennial or intermittent. The Agencies propose to define the term “perennial” to mean surface “water flowing continuously year-round during a typical year.” The proposed definition of “intermittent” is “surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation, but when the groundwater table is elevated, for example, or when snowpack melts.” On the other hand, the term “ephemeral” in the proposal “means surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall.”
- Lakes and Ponds: The Proposed Rule announces that certain lakes and ponds will continue to be considered WOTUS; however, the proposal replaces Justice Kennedy’s case-by-case Rapanos assessment of “significant nexus” to analyze the relationship between, for example, a particular lake or pond with downstream waters. Instead, the Proposed Rule identifies a category of certain lakes and ponds due to their contribution of perennial or intermittent flow to navigable waters. The categories of lakes or ponds that, under the Proposed Rule, are considered WOTUS are: (i) traditionally navigable waters, and (ii) lakes and ponds “that can contribute flow to [a traditionally navigable water] either directly or through a tributary, jurisdictional ditch, another jurisdictional lake or pond, an impoundment, an adjacent wetland, or through a combination of these waters.”
- Wetlands: The Agencies are not proposing under the Proposed Rule to change the definition of “Wetlands”; the Proposed Rule seeks to refine, however, the reach of jurisdictional wetlands. Under the Proposed Rule, jurisdictional wetlands will only be those wetlands that are adjacent to “traditional navigable waters” or other WOTUS categories. The key feature of the Proposed Rule is that to qualify as jurisdictional under the CWA, a wetland must be “adjacent,” meaning that the wetland must either abut or have a “direct hydrologic surface connection” to a WOTUS category. The term “Abut” is proposed to mean “when a wetland touches a water of the United States at either a point or side.” A direct hydrologic surface connection as proposed “occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water.” This definition would exclude from CWA jurisdiction wetlands that have an indirect hydrological connection and separated from a WOTUS category by dikes, barriers and similar structures, or by upland (any land area above the ordinary high-water mark or high tide line that does not satisfy all three wetland delineation factors, hydrology, hydrophytic vegetation, and hydric soils). Features that were once wetlands but have been naturally transformed or lawfully converted to upland (e.g., in compliance with a section 404 permit) would be considered upland.
The Proposed Rule also announces eleven exclusions from the definition of WOTUS, including the following:
- Groundwater: The Proposed Rule excludes groundwater, including groundwater drained through a subsurface drainage system.
- Artificially Irrigated Areas: The Proposed Rule excludes areas that are artificially irrigated primarily for agriculture, including fields flooded for rice or cranberry growing, that would revert to upland if irrigation of that area were to cease.
- Stormwater Control Features and Diffuse Stormwater Runoff: The Proposed Rule excludes “stormwater control features excavated or constructed in upland [a defined term] to convey, treat, infiltrate, or store stormwater run-off” as well as “diffuse stormwater run-off such as directional sheet flow over upland.”
- Ditches: The Agencies propose to define “Ditches” as “artificial channels used to convey water.” “Ditches” is a broad category that encompasses even canals used for navigation, and thus some ditches would be jurisdictional. The Proposed Rule seeks to distinguish between jurisdictional and non-jurisdictional ditches. Jurisdictional ditches are channels that are traditionally navigable, constructed in a tributary, constructed in a jurisdictional wetland, or satisfy the definition of a tributary. Non-jurisdictional ditches are all other ditches.
- Prior Converted Cropland: This category has been excluded from WOTUS since 1993 and would continue to be excluded by the Proposed Rule. However, the Agencies propose to clarify that when cropland has been abandoned, and wetlands have returned, any prior converted cropland designation for that site would no longer be valid for purposes of the CWA.
- Artificial Lakes and Ponds: Unless otherwise covered by a WOTUS category or maintaining the necessary direct surface connection, artificial lakes and ponds constructed in upland (e.g., water storage reservoirs, farm and stock watering ponds, settling basins, and log cleaning ponds) are excluded by the Proposed Rule.
- Water-Filled Depressions: The Proposed Rule excludes water-filled depressions created in upland and “incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel.”
- Wastewater Recycling Structures: The Proposed Rule would exclude wastewater recycling structures constructed in upland (e.g., detention, retention and infiltration basins and ponds, and groundwater recharge basins).
- Waste Treatment Systems: Waste treatment systems have been excluded from the WOTUS definition since 1979, and they would continue to be excluded under the Proposed Rule; however, waste treatment systems are now expressly defined for the first time in the Proposed Rule. Waste treatment systems include all components of the system, “including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge).” The Preamble to the Proposed Rule notes that waste treatment systems can be constructed in existing WOTUS – “when an applicant receives a permit to impound a water of the United States in order to construct a waste treatment system, the agencies are affirmatively relinquishing jurisdiction over the resulting waste treatment system as long as it is used for this permitted purpose, consistent with longstanding practice.”
Although the comment period has not formally started, the Proposed Rule has already drawn both praise and sharp criticism from interested participants. Critics claim that the Proposed Rule is grounded in legal argument and not science. Proponents believe the Proposed Rule would reduce regulatory burdens. As such, the comment period may prove an opportunity to preview the various future legal challenges to and defenses of the Proposed Rule when, and if, it is finalized.
Comments can be submitted through the Federal eRulemaking Portal: http://www.regulations.gov and by following the online instructions for submitting comments. The Agencies will hold an informational webcast on January 10, 2019 and will host a listening session on the Proposed Rule in Kansas City, KS, on January 23, 2019.
Troutman Sanders environmental attorneys are tracking the development of the Proposed Rule, and for more information on the Proposed Rule and WOTUS, please contact Brooks Smith, Chuck Sensiba, Kevin Desharnais, Andrea Wortzel, Byron Kirkpatrick, Patrick Fanning, or Morgan Gerard.