The Nickel Report

The reach of the CWA is “notoriously unclear.” Sackett v. EPA, 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). It can be difficult for a landowner to understand whether wetlands or a small creek on his or her parcel, for example, are federal waters that require a Clean Water Act (CWA) permit before the landowner can begin work to build a home, develop the property, or cultivate the land. Last week, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) (together, the Agencies) issued a new, long-awaited final rule, titled the “Navigable Waters Protection Rule,” which seeks to streamline and clarify the geographic scope of federal CWA jurisdiction.

The new Navigable Waters Protection Rule is the culmination of the Trump Administration’s efforts to repeal and replace the controversial 2015 Clean Water Rule, which established a broader definition of “waters of the United States” (WOTUS) that are subject to federal CWA jurisdiction. The 2015 Rule, which was immediately challenged by multiple parties, including 31 States, 54 business and municipal petitioners, and environmental NGOs, in numerous forums across the country, was stayed in 27 states, resulting in patchwork implementation and creating confusion for CWA jurisdictional determinations across the country. Two district courts found the 2015 Rule was unlawful and remanded to the Agencies.

The Navigable Waters Protection Rule provides a new WOTUS definition. It provides new definitions for key terms, such as “tributaries” and “adjacent wetlands,” that are designed to provide clarity and consistency in jurisdictional determinations.  The new Rule identifies four categories of jurisdictional waters:

• Traditional Navigable Waters. The definition remains the same as it has existed in the regulatory text for decades:  traditional navigable waters include “[t]he 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.” The Agencies clarify, in the preamble, that “whether a water is susceptible to use in interstate commerce requires more than simply being able to float a boat to establish jurisdiction over navigable-in-fact waters …; it requires evidence of physical capacity for commercial navigation and that it was, is, or actually could be used for that purpose.”
• Tributaries. Under the new definition, tributaries include perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year. A “typical year” is defined as when precipitation and other climatic variables are within the normal periodic range for the area in question based on a rolling thirty-year period. Notably, this definition excludes ephemeral streams, i.e., features that only have surface flow in direct response to precipitation. The tributaries definition includes ditches that meet the tributary definition and are relocated/constructed in a tributary or adjacent wetland.
• Lakes, Ponds, and Impoundments of Jurisdictional Waters. These features are jurisdictional when they contribute surface water flow to a traditional navigable water in a typical year, either directly or through other WOTUS via channelized non-jurisdictional surface waters, or artificial or natural features.
• Adjacent Wetlands. Wetlands are “adjacent” to the three categories discussed above, and therefore jurisdictional if they: (1) abut (physically touch at least one point or side), (2) are inundated by flooding from a jurisdictional water in a typical year, (3) are separated from a jurisdictional water by only a natural berm, bank, or dune, or (4) are separated from jurisdictional waters by an artificial barrier (e.g., dike) and the structure allows for a direct hydrologic surface connection. To be jurisdictional, “wetlands” must satisfy all three wetlands factors (hydrology, hydrophytic vegetation, hydric soils).

The final rule excludes twelve categories of features, including:

• All waters that do not fit into the four categories above.
• Groundwater. Consistent with the Agencies’ previous practice, groundwater, including groundwater drained through subsurface drainage systems, is not a WOTUS.
• Ditches. Ditches with ephemeral flow, and ditches that are not constructed in/relocate a tributary or adjacent wetlands, are not jurisdictional under the final rule.
• Prior Converted Cropland. This includes any area that prior to December 23, 1985 was drained or otherwise manipulated for the purpose of making production of an agricultural product possible.
• Waste Treatment Systems. Under the final rule, a waste treatment system “includes all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).”
• Artificial Lakes and Ponds. This includes water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed in non-jurisdictional areas.
• Other Exclusions. Diffuse stormwater runoff and sheet flow, artificially irrigated areas that would revert to uplands, water-filled depressions excavated in non-jurisdictional areas, stormwater features created in non-jurisdictional areas, and groundwater recharge and water recycling structures.

For projects that have received jurisdictional determinations under the prior regulations, those determinations remain valid until their expiration date (five years from issuance) unless new information warrants revision before the expiration date or the applicant requests a new jurisdictional determination.

The new definition will become effective 60 days from publication in the Federal Register, and is expected to be challenged in various district courts across the country.