On December 11, 2018, the Environmental Protection Agency (EPA) and the Department of the Army (the "Agencies") unveiled their much-anticipated definition of "waters of the United States," ("WOTUS") which would reshape federal authority under the Clean Water Act (CWA). Under the proposed rule, ephemeral tributaries, which are caused by rain or snow, would be excluded. In addition, fewer ponds, lakes, wetlands, and ditches would be subject to CWA jurisdiction.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” EPA Acting Administrator Andrew Wheeler said in a press statement. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.” 

2015 Clean Water Rule

The Clean Water Act (CWA) provides that a permit mist be obtained prior to the discharge of any pollutants into “navigable waters.” The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.” 

The newly proposed WOTUS definition stands in stark contrast to its predecessor. In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” (WOTUS Rule or Clean Water Rule). The rule adopted the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), defining the test of jurisdictional waters as whether a water or wetland possesses a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”

The broad standard set forth in the 2015 WOTUS Rule was immediately subject to litigation. In total, 31 states, the U.S. Chamber of Commerce, and several other interested parties challenged the scope and legal authority of the WOTUS Rule. As a result, it never fully took effect nationwide.

Trump Administration Repeals 2015 Clean Water Rule

Shortly after taking office, President Donald Trump issued an Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As the title implies, the Executive Order stated that “it is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.”

In his Executive Order, President Trump directed the EPA and Army Corp of Engineers to consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos. In the Supreme Court’s split decision, Justice Scalia maintained that “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .”  

In 2017, the EPA and Army Corps of Engineers acted on President Trump’s directions by proposing a new rule to rescind the definition of “waters of the United States” in the Code of Federal Regulations and recodify the pre-WOTUS Rule regulations and guidance in order to “provide continuity and certainty for regulated entities, the States, agency staff, and the public.” The Agencies are now conducting step two of the rulemaking process by proposing a new definition of WOTUS.

Key Changes Under Proposed WOTUS Definition

As detailed in an EPA Fact Sheet, the proposed rule identifies six categories of waterways that would fall under the CWA:

  • Traditional navigable waters (TNWs): Traditional navigable waters would be large rivers and lakes, tidal waters, and the territorial seas—such as the Atlantic Ocean, the Mississippi River, the Great Lakes, and tidally influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce.
  • Tributaries: Tributaries would be rivers and streams that flow to traditional navigable waters. To fall under the WOTUS definition, these naturally occurring surface water channels must be perennial or intermittent rather than ephemeral. Tributaries can connect to traditional navigable waters directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream.
  • Certain ditches: A ditch under the proposed rule would be an “artificial channel used to convey water.” Under the proposal, ditches would be jurisdictional where they are traditional navigable waters, such as the Erie Canal, or subject to the ebb and flow of the tide. Ditches may also fall under the CWA where they satisfy conditions of the tributary definition as proposed and either 1) were constructed in a tributary or 2) were built in adjacent wetlands.
  • Certain lakes and ponds: Lakes and ponds would be jurisdictional where they are traditional navigable waters or where they contribute perennial or intermittent flow to a traditional navigable water either directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream. Lakes and ponds would be also be considered WOTUS where they are flooded by a “water of the United States” in a typical year.
  • Impoundments: Under the proposal, impoundments of “waters of the United States” would be subject to the CWA.
  • Adjacent wetlands: Under the proposal, wetlands that physically touch other jurisdictional waters would be “adjacent wetlands.” Wetlands with a surface water connection in a typical year that results from 1) inundation from a “water of the United States” to the wetland or 2) perennial or intermittent flow between the wetland and a “water of the United States” would be “adjacent.” Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated, for example by a berm, levee, or upland, would be adjacent only where they have a surface water connection described in the previous bullet through or over the barrier, including wetlands flooded by jurisdictional waters in a typical year.

The proposed WOTUS definition also outlines what would not be a jurisdictional water under the CWA. The list includes ephemeral features that contain water only during or in response to rainfall; groundwater; prior converted crop land; waste treatment systems; and storm water control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.

The exclusion of ephemeral features is significant given that an EPA study commissioned under President Obama found that nearly 60 percent of all U.S. waterways, and 81 percent in the Southwest, are ephemeral or flow seasonally. In addition, limiting wetland to those that touch or have a direct surface water connection to protected rivers, streams and lakes would significantly limit the reach of the CWA.

Relevance to New Jersey and Other "Delegated States"

The WOTUS debate has less direct application to CWA jurisdiction in states where Clean Water Act regulation has been delegated to state government. In those states, the scope of regulatory jurisdiction is determined by state laws and regulation. New Jersey is one of those delegated states, except for the Hackensack Meadowlands District and certain coastal wetland areas, where federal jurisdiction, and therefore, the definition of WOTUS still prevails. Furthermore, because the terms of the state program must be at least generally consistent with the federal program for the delegation to remain viable, the WOTUS issue is still worthy of attention even in delegated states.

Next Steps

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. Comments on the proposal should be identified by Docket ID No. EPA-HQ-OW-2018-0149 and may be submitted online at https://www.regulations.gov. The EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

While it may still be subject to additional revisions, and legal challenges are likely, the new WOTUS Rule will significantly impact a wide range of legal issues related to the CWA, including permitting, regulatory compliance and potential liability matters. Members of the regulated community should, therefore, stay informed regarding WOTUS Rule developments and participate in the notice and comment process.

If you have any questions, please contact us

If you have any further questions, feel free to reach out to me, William C. Sullivan, Jr., at 201-806-3364.