September 29, 2020

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September 29, 2020

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September 28, 2020

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EPA and Army Corps Again Propose to Redefine Waters Regulated Under the Clean Water Act

On December 11, 2018, the U.S. Environmental Protection Agency and Army Corps of Engineers (the “agencies”) announced once again that they are proposing a new rule to redefine the scope of waters and wetlands subject to regulation under the federal Clean Water Act (“CWA”).  Since taking office in January 2017, President Trump has made rolling back the Obama Administration’s 2015 ruledefining “waters of the United States” (“WOTUS”)—the CWA’s jurisdictional touchstone—a top environmental priority.  The new proposal would do just that by significantly reducing the categories of waters subject to federal jurisdiction under the CWA.

Comments will be due in mid-February, 2019, 60 days after the agencies notice the proposal in the Federal Register.

Proposed New WOTUS Definition

The new proposed WOTUS definition takes a significantly narrower view of CWA jurisdiction than the version currently in place and would institute a new test that focuses on flow for determining whether a feature qualifies as a jurisdictional water.

Under the proposal, the agencies attempt to simplify jurisdictional determinations by reducing and clarifying the categories of waters that qualify as WOTUS.  Specifically, the agencies identify six categories of jurisdictional waters:

  1. Traditional navigable waters, including territorial seas;
  2. Tributaries to those navigable waters, including perennial (defined as “surface water flowing continuously year-round during a typical year) or intermittent (defined as water flowing continuously during certain times of a typical year, not merely in direct response to precipitation) rivers and streams that “contribute flow in a typical year”;
  3. Ditches that are used for navigation, affected by the tide, or sited within otherwise jurisdictional waters;
  4. Lakes and ponds that are similar to traditional navigable waters or that provide perennial or intermittent flow in a “typical year” to a traditional navigable water or adjacent wetland;
  5. Impoundments of otherwise jurisdictional waters, such as check dams and perennial rivers that form lakes behind them; and
  6. Wetlands that abut (i.e., touch at either a point or side) or have a direct hydrologic surfaceconnection to other “waters of the United States.”

These new proposed categories of jurisdictional waters make clear that the Trump Administration has a far more conservative view of CWA jurisdiction than both the Obama Administration and the George W. Bush Administration, the latter of which was responsible for developing a regulatory strategy for responding to the U.S. Supreme Court’s muddled 2006 non-decision on the scope of federal jurisdiction in Rapanos v. United States.  In particular, the new proposal would expressly exclude numerous categories of waters from CWA jurisdiction: any features not specifically enumerated above; groundwater; diffuse stormwater runoff; all ditches other than those identified above; all ephemeral waters; artificially irrigated areas; artificial lakes and ponds constructed in uplands that do not qualify as jurisdictional lakes/ponds or impoundments above; water-filled depressions in uplands resulting from mining or construction activities; pits excavated in uplands for purposes of obtaining fill or sand/gravel; stormwater control features created in uplands; wastewater recycling structures (e.g., detention and infiltration ponds); and those wetlands not directly connected by surface waters to another jurisdictional feature.  Additionally, the proposal would retain the longstanding regulatory exclusions for prior converted cropland and waste treatment systems.

To help the regulated community determine whether a particular feature falls within the new categories of jurisdictional waters, the proposal identifies new standards that focus on hydrologic flow and surface connections.  For tributaries to be considered a WOTUS, they must exhibit regular surface flow (not in direct response to precipitation) and “contribute flow in a typical year” to navigable waters.  The proposal defines the “typical year” as the average hydrologic contribution of that feature over a 30-year period.  Similarly, for wetlands to be jurisdictional, they must either touch or have a direct surface connection to another WOTUS.

Conclusions and Implications

If finalized as proposed, the new WOTUS rule would accomplish the Trump Administration’s goal of significantly scaling back the scope of federal jurisdiction under the agencies’ CWA regulations.  To accomplish that, the proposal would abandon the Obama Administration’s exclusive reliance on Justice Kennedy’s “significant nexus” test from Rapanos and adopt key elements from the far narrower Scalia test.  While that change almost certainly would bring greater clarity to federal CWA jurisdiction, it also would bring legal challenges because only four Justices in Rapanos endorsed the Scalia test. 

In the meantime, inconsistency and confusion will continue over regulation of waters of the U.S.  As a result of numerous challenges across the country to the 2015 Obama-era WOTUS rule, that rule is the law of the land in 22 states while the previous regulations remain in effect everywhere else.  

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 348


About this Author

W. Parker Moore Environmental Attorney Beveridge & Diamond Washington, DC

Parker guides complex projects to successful completion.

His environmental law practice is an outgrowth of his love for the natural world. He co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group and its NEPA, Wetlands, and Endangered Species Act groups.

Parker dedicates his practice to successful project development, advising clients nationwide on activities implicating NEPA, wetlands regulation, and federal and state species protection laws, including the Endangered Species Act, Migratory Bird Treaty Act, Bald and...

James M. Auslander Natural Resources & Project Development Attorney Beveridge & Diamond Washington, DC

James (Jamie) M. Auslander's legal practice focuses on project development, natural resources, and administrative law and litigation.

Mr. Auslander co-chairs Beveridge & Diamond’s Natural Resources and Project Development Practice Group, including its Energy Practice. He focuses on complex legal issues surrounding the development of oil and gas, hard rock minerals, renewable energy, and other natural resources on public lands onshore and on the Outer Continental Shelf. He frequently litigates appeals before federal courts and administrative bodies regarding rulemakings, permits, and other issues. He represents major and small businesses, leading industry trade associations, and state and local agencies in a wide range of environmental matters, both national and local in scope. He serves clients in all phases of a case, including internal compliance, administrative proceedings and negotiations, and litigation when necessary.

Jamie devotes a significant part of his practice to counseling and litigation under the National Environmental Policy Act (NEPA) and similar state laws. He has represented public and private clients in building strong administrative records and robust NEPA analyses to support complex projects and proposals. For example, Jamie was integral in crafting and implementing a successful strategy to construct a major new highway in the Washington, DC area that presented NEPA and other environmental issues that many felt were impossible to resolve. He also advises a biotechnology company regarding the NEPA sufficiency of petitions to commercialize genetically modified crop seeds. Further, Jamie represents an industry association in a NEPA matter involving modes of recreation in national parks.

Another cornerstone of Jamie’s practice assists multinational corporations, domestic companies, and leading industry trade associations in protecting valuable lease rights and navigating the ever-changing environmental requirements to develop those leases. He frequently works with the Bureau of Ocean Energy Management (the former Minerals Management Service) and prosecutes appeals before the Interior Board of Land Appeals regarding royalty, suspension, decommissioning, regulatory departures, and other issues. Jamie has also drafted proposed mineral leasing reform legislation, analyzed the constitutionality of proposed new royalty obligations, submitted comments on proposed wind leasing regulations, and updated clients’ corporate reporting policies.

Jamie also represents municipalities and local businesses in challenging parochial bans on biosolids and solid waste. In one case, representing a coalition of biosolids generators, haulers, and farmers, he helped successfully preliminary enjoin enforcement of a local ban on recycling of biosolids as fertilizer to farmland. Jamie serves as Common Counsel to a large group of Potentially Responsible Parties (PRPs) at one of the biggest Superfund sites in the United States. He has also provided advice on the proper handling and disposal of products and waste containing PCBs and other contaminants.

Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies...

Brooklyn N. Hildebrandt Environmental Litigation Attorney Beveridge & Diamond Washington, DC

Brooklyn maintains a diverse environmental litigation and regulatory practice and is also committed to pro bono work.

She enjoys the challenge of solving legal problems for clients in the face of constantly changing and often contradictory regulations that require a big-picture approach to resolution. She takes the time to listen to clients, isolate the exact problem they’re facing, identify all applicable rules, and provide a comprehensive solution. Her goal in every matter is to help the client get ahead of any non-compliance issue while remaining in good standing with enforcement...