On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) finalized the Navigable Waters Protection Rule. The controversial rule redefines “waters of the United States” and narrows federal regulatory authority under the Clean Water Act (CWA). 

"EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects," EPA Administrator Andrew Wheeler said in a press statement. "After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided."

Legal Uncertainty Surrounding WOTUS

Under the Clean Water Act (CWA), a permit must 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.” As discussed in greater detail in prior articles, the definition of “waters of the United States” (WOTUS) has been the subject of intense debate for the past several years.

In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” which broadly defined the scope of jurisdictional waters as whether a water or wetland possesses a “significant nexus” to waters that are or were navigable. The 2015 WOTUS Rule prompted significant litigation, which prevented it from being implemented in more than half of the country. Upon taking office, President Trump made it a priority to repeal the Obama-era rule and create a more restrictive WOTUS definition. The EPA and USACE subsequently conducted a two-step rulemaking process that rescinded the 2015 rule and proposed a new definition of WOTUS.

Final Navigable Waters Protection Rule

Under the final Navigable Waters Protection Rule, four categories of waters are federally regulated:

• Territorial seas and traditional navigable waters: Territorial seas and traditional navigable waters include large rivers and lakes (i.e., Mississippi River and the Great Lakes) and tidally-influenced waterbodies used in interstate or foreign commerce. 
• Perennial and intermittent tributaries to those waters: Tributaries include perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year. To fall under the CWA, tributaries must be perennial or intermittent. Tributaries can connect to a traditional navigable water or territorial sea in a typical year either directly or through other “waters of the United States,” through channelized non-jurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). Ditches qualify as tributaries only where they satisfy the flow conditions of the perennial and intermittent tributary definition and either were constructed in or relocate a tributary or were constructed in an adjacent wetland and contribute perennial or intermittent flow to a traditional navigable water in a typical year.
• Certain lakes, ponds, and impoundments: Lakes, ponds, and impoundments of jurisdictional waters are jurisdictional where they contribute surface water flow to a traditional navigable water or territorial sea in a typical year either directly or through other “waters of the United States,” through channelized non-jurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). Lakes, ponds, and impoundments of jurisdictional waters are also jurisdictional where they are flooded by a “water of the United States” in a typical year, such as certain oxbow lakes that lie along the Mississippi River.
• Wetlands adjacent to jurisdictional waters: Wetlands that physically touch other jurisdictional waters are “adjacent wetlands.” Wetlands separated from a “water of the United States” by only a natural berm, bank or dune are also “adjacent,” as are wetlands inundated by flooding from a “water of the United States” in a typical year. Wetlands that are physically separated from a jurisdictional water by an artificial dike, barrier, or similar artificial structure are “adjacent” so long as that structure allows for a direct hydrologic surface connection between the wetlands and the jurisdictional 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 final rule also details 12 categories of exclusions. The list includes ephemeral features that contain water only during or in response to rainfall; groundwater; prior converted cropland; waste treatment systems; and stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.

Changes Reflected in Final Rule

The EPA and USACE made several changes in response to public comments on its proposed rule. Notably, ditches and impoundments are no longer separate categories of jurisdictional waters. Under the final rule, perennial and intermittent tributaries upstream of ephemeral reaches are jurisdictional when they have a surface water connection to downstream jurisdictional water in a typical year.

The final rule expands and clarifies the factors that determine whether wetlands are considered adjacent and thereby subject to the CWA. Under the proposal, wetlands physically separated by a natural or artificial barrier from another jurisdictional water would not have been subject to Clean Water Act jurisdiction. Many of these wetlands will be covered by the final rule.

What’s Next?

While the Navigable Waters Protection Rule aims to provide regulatory certainty, environmental groups have already announced that they plan to challenge the rule. "So much for the 'crystal clear' water President Trump promised," said Natural Resources Defense Council President and CEO Gina McCarthy, who previously served as EPA Administrator under President Obama. "This effort neglects established science and poses substantial new risks to people's health and the environment. We will do all we can to fight this attack on clean water. We will not let it stand."

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.