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. Seems clear, right? But, 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 tried 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 enjoin the enforcement of the 2015 definition, largely alleging that the rule was too expansive and infringed upon private property rights and state sovereignty. One of the rule’s most vocal critics was President Trump’s future EPA administrator, Oklahoma Attorney General Scott Pruitt. 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 published today is the result.
The new definition.
Waters of the United States: The new rule 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;
- Lakes and ponds, and impoundments of jurisdictional waters; and
- Adjacent wetlands.
Not Waters of the United States: The new rule expressly excludes certain waters and water features from the definition:
- Waters or water features not listed above
- 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; and
- 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 into, or the dredge or fill of, certain wetlands, ephemeral streams, or non-jurisdictional artificial ponds, pools, and lakes. 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. After all, the 2015 rule did not.