The Nickel Report

Last week, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) (together, the Agencies) issued a long-awaited proposal to redefine the “waters of the US” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). The reach of the CWA is notoriously unclear, but knowing which areas on your property are jurisdictional and will require permits is critical to project planning and timelines. If finalized, the proposed rule would replace the Obama administration’s contentious 2015 WOTUS Rule and eliminate the regulatory patchwork that currently exists as the 2015 WOTUS Rule is being implemented in only certain parts of the country.

The new proposal is the second step of a two-part process to review and revise the 2015 WOTUS Rule. Following the issuance of the 2015 WOTUS Rule, 31 states and 53 industry and environmental groups filed petitions challenging the rule’s validity. This web of litigation has resulted in a series of federal district court injunctions preventing implementation of the 2015 WOTUS Rule in 28 states. In those 28 states, the Agencies are implementing the pre-2015 WOTUS regulatory regime. In the other 22 states and US territories, the 2015 Rule’s WOTUS definition is in effect. In February 2017, President Trump signed an Executive Order that set into motion a process for the Agencies to review the 2015 WOTUS Rule and, as appropriate, publish a proposed rule rescinding or revising the 2015 rule.

With this proposal, the Agencies seek to replace the 2015 WOTUS Rule with a new definition that clarifies federal authority under the CWA and provides greater flexibility to states and tribes to manage their land and water resources. Rather than adopting the test of a particular opinion from the Supreme Court’s landmark Rapanos opinion, the proposed rule aims to be consistent with all of the Supreme Court case law and the statute. The proposed rule is intended to establish bright lines between federal and state waters and would eliminate case-by-case application of the significant nexus test set forth in Justice Kennedy’s concurring Rapanos opinion.

Under the proposed rule, WOTUS would include six categories of water features:

1. Traditional Navigable Waters (TNWs)—Waters currently used, or that were used in the past, or may be susceptible to use in interstate or foreign commerce, including territorial seas or tidal waters. This definition is largely the same as the 2015 Rule and previous regulations, except that territorial seas are now rolled into this category (rather than addressed as a separate category), and the proposal removes interstate waters as a jurisdictional category.
2. Tributaries—Rivers, streams, or similarly occurring surface water channels that contribute perennial (flowing continuously year-round) or intermittent (flowing continuously during certain time of a typical year, more than in response to precipitation) flow to a TNW in a typical year (within normal range of precipitation over thirty-year period). The use of the concepts of “intermittent” and “perennial flow” in a “typical year” is intended to address regional and geographic variations, with the concept of “typical year” being a new defined term. Streams that are ephemeral (flowing only in direct response to precipitation) are not jurisdictional WOTUS.
3. Ditches—Ditches (artificial channels used to convey waters) that: (1) are constructed in or relocate a tributary or adjacent wetland, AND (2) meet the tributary definition (that they contribute perennial or intermittent flow to TNW in a typical year). Ditches that do not satisfy these criteria (i.e., upland ditches, ditches with ephemeral flow) are not jurisdictional WOTUS.
4. Lakes and Ponds—Lakes and ponds that contribute perennial or intermittent flow (directly or indirectly) to a TNW in a typical year, or are flooded by a jurisdictional WOTUS in a typical year. This is a new category of jurisdictional waters. Lakes and ponds were previously regulated under other categories, such as TNWs or tributaries. Lakes and ponds that contribute only ephemeral flow to TNWs are not jurisdictional WOTUS.
5. Impoundments—Impoundments of WOTUS. The Agencies have not proposed changes to this category, but request comments on whether impoundments are needed as a separate category.
6. Adjacent Wetlands—Wetlands that abut (touch at least one point or side) or have a direct hydrological surface connection to jurisdictional WOTUS. Wetlands that are separated from other WOTUS by uplands (defined as areas that do not meet all three wetland criteria—hydrology, hydrophytic vegetation and hydric soils) or by dikes, barriers or other similar structures would have to have a direct hydrologic surface connection to WOTUS in a typical year to be a jurisdictional adjacent wetland. Ephemeral flow or subsurface connections do not constitute a direct hydrologic connection. With this proposal, the Agencies would eliminate the previously used bordering, contiguous and neighboring concepts for adjacent wetlands. The proposed rule also would provide exclusions for certain types of features, including (but not limited to) prior converted cropland, stormwater features and artificial ponds constructed in uplands, and waste treatment systems.

Under the proposal, any waters that do not fall within those six categories are not federally regulated WOTUS, although states and many tribes have existing regulations that apply to waters within their borders, irrespective of whether they are considered “waters of the United States.”

The proposed rule will be published in the Federal Register in the next few weeks with a 60-day comment period. The Agencies have stated that they intend to finalize the new rule by the end of 2019.