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Hold Your Water – Navigating the new rule defining “Waters of the United States”

On January 23, 2020, the Department of the Army Corps of Engineers and the U.S. Environmental Protection Agency finalized a rule redefining the scope of federal regulatory jurisdiction over “waters of the United States.”

Background

The federal Clean Water Act, 33 U.S.C., §§1251, et seq., prohibits the discharge of any “pollutant” (including not only traditional contaminants but also dredge spoils, rock, and sand) into “waters of the United States” without a permit. Almost since it was enacted in 1972, the scope of federal jurisdiction under the Act has been confusing and controversial, primarily because of the vague statutory language. The agencies have revised the definition a number of times, and the agencies' interpretations have invariably been challenged in court as being either too narrow or too broad. Along the way, the United States Supreme Court has addressed the issue directly in at least three decisions, two of which overturned prior agency interpretations on the basis that they expanded jurisdiction beyond what Congress intended or the Constitution allowed. Over the years, the definition and the attendant regulatory requirements have been a trap for unwary property owners and developers working in wetlands, sometimes far from navigable waters, or even on dry land impacted only occasionally by ephemeral waters.

The definition in the new rule is a significant departure from the 2015 rule proposed by the Obama administration, which had been intended to provide clarity and certainty, but required detailed, specialized studies and evaluations to assess and, if necessary, mitigate impacts to wetlands. The 2015 rule was challenged immediately and enjoined by the courts until it was finally repealed in 2019 by the Trump administration. The new rule also purports to provide clarity and certainty, but it does so by significantly narrowing the scope of coverage and eliminating numeric tests and standards. The stated purpose of the new rule is to reduce federal overreach, allowing states to decide questions about land use and environmental protection for areas that do not have a direct connection to interstate waters.

Like its predecessors, the new rule will undoubtedly be challenged immediately in the courts, after it is published in the Federal Register.

The new rule retains much of the definition and scope included in prior rules, but excludes isolated wetlands and ephemeral streams that only flow after heavy rainfall. Gone are the specific numeric criteria in the 2015 rule and case-specific nexus analyses like those suggested by Justice Kennedy in his 2006 Rapanos opinion.

The new rule defines “waters of the United States” as follows:

(a) Jurisdictional waters. For purposes of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term “waters of the United States” means:

(1) 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;

(2) Tributaries;

(3) Lakes and ponds, and impoundments of jurisdictional waters; and

(4) Adjacent wetlands.

Each of these terms are defined in the new rule. For example, “adjacent wetlands” is defined as follows:

(1) Adjacent wetlands. The term adjacent wetlands means wetlands that:  (i) abut, meaning to touch at least at one point or side of, a paragraph (a)(1) through (3) water; (ii) are inundated by flooding from a paragraph (a)(1) through (3) water in a typical year; (iii) are physically separated from a paragraph (a)(1) through (3) water only by a natural berm, bank, dune, or similar natural feature; or (iv) are physically separated from a paragraph (a)(1) through (3) water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the paragraph (a)(1) through (3) water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.

The rule specifically excludes from federal regulation what it calls non-jurisdictional waters, which are defined to mean all other waters, including specifically the following:

(b) Non-jurisdictional waters. The following are not “waters of the United States”:

(1) Waters or water features that are not identified in paragraphs (a)(1) through (4) of this section;

(2) Groundwater, including groundwater drained through subsurface drainage systems;

(3) Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;

(4) Diffuse stormwater run-off and directional sheet flow over upland;

(5) Ditches that are not paragraph (a)(1) or (2) waters, and those portions of ditches constructed in paragraph (a)(4) waters that do not satisfy the conditions of paragraph (c)(1);

(6) Prior converted cropland;

(7) Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;

(8) Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the conditions of paragraph (c)(6);

(9) 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 non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;

(10) Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;

(11) 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

(12) Waste treatment systems.

Federal protection of waters of the United States remains a trap for unwary property developers, but if the new rule withstands judicial scrutiny, there will be a more obvious connection between regulated lands and traditional waterways. The new rule will not eliminate the need to consult qualified experts and environmental counsel before commencement of construction activities in or near wetlands, streams, and other potential water bodies.

© 2020 Foley & Lardner LLP

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David Bates, Foley Lardnre Law Firm, Houston, Environmental and Energy Law Attorney
Of Counsel

For more than 30 years, David Bates has been handling cases in the energy and environmental law arena with complex issues and large stakes, attracting both U.S. and foreign clients, such as business owners, investors and other stakeholders with significant investments in Texas and elsewhere. Disputes are often centered around oil and gas mineral leases, including royalty disputes, joint operating agreements, and purchase and sale agreements, often involving unconventional shale properties. His legal representation includes contract interpretation, assistance with...

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Peter Tomasi, Foley Lardner, Environmental lawyer, regulations, environmental issues,
Of Counsel

Peter A. Tomasi is of counsel and a business lawyer with Foley & Lardner LLP, where he is a member of the firm’s Environmental Regulation Practice. His practice focuses on regulatory compliance and renewable energy. Mr. Tomasi has further experience with general civil, commercial, and intellectual property litigation.

Representative Experience

  • Representation of logistics providers and reverse distributors in rulemaking and enforcement matters involving hazardous waste pharmaceuticals
  • Assisting clients with obtaining environmental permits from state, federal, and tribal agencies for mining operations as well as assisting clients in developing reclamation and general compliance plans
  • Representation of clients in citizen suits brought under the Clean Air Act and Clean Water Act against utility and manufacturing facilities
  • Assisting clients in preparing comments on federal regulations issued under the Clean Air Act, the Resource Conservation and Restoration Act, and the National Energy Policy Conservation Act
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