A shift in the current: Update on Clean Water Act WOTUS rule

The controversial definition of "waters of the United States," aka WOTUS, which establishes the reach of federal jurisdiction under the Clean Water Act, may be changing yet again. On Dec. 10, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency announced proposed regulations to describe which waters trigger federal permit requirements for activities that occur in, or discharge to, such waters. The Corps issues permits for dredging and filling of WOTUS under Section 404, while the EPA, along with states delegated Clean Water Act authority, issue federal permits for discharging stormwater and waste water to WOTUS under Section 402.

A clear WOTUS definition is critical not only to determine when permits are required, but also as a threshold question to establish when violations have occurred and enforcement is warranted. When the definition is vague, landowners and project proponents may conclude no WOTUS are present or impacted by their activities and if agency perspectives differ, they may face tremendous fines, attorney fees and restoration costs.

In this latest proposal, the Corps and the EPA promise to provide certainty to landowners with a "simpler and clearer" definition of WOTUS to help them understand whether a project on their property requires a federal permit, without spending thousands of dollars on environmental and legal professionals. Agency proponents claim the new rule "clearly defines the difference between federally protected waterways and state protected waterways," and provides a "clear and predictable approach" to regulating WOTUS.

Navigable waterbodies (e.g., bays, rivers, lakes, ocean), are unquestionably WOTUS. However, certain other wet landscape features do not lend themselves well to bright lines of definition. While WOTUS more obviously encompasses wetlands along the margin of a tidal estuary, what about wetlands across a levee or across a road? Or isolated wetlands that never drain to a navigable water? And what about stream beds that are dry most of the year or most years?

The definition of WOTUS has shifted over the years as a result of heated controversy over the inclusion of these kinds of wet areas. In a 2001 landmark decision, the U.S. Supreme Court ruled that isolated wetlands are not within the jurisdiction of the Clean Water Act. Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159 (2001). The EPA issued two guidance memos attempting to clarify and interpret WOTUS in light of the ruling, but then the Supreme Court issued an even more confusing decision in 2006 that not only failed to provide much-needed clarity, but actually created considerable confusion, in part because there was no majority opinion. After widespread debate over how to interpret the split opinions in Rapanos v. U.S., Justice Anthony Kennedy's analysis was ultimately followed as the narrowest necessary for the judgment in the case. Kennedy established a "significant nexus" test: Wetlands that significantly affect the chemical, physical and biological integrity of navigable waters have a significant nexus with those waters and are WOTUS. Rapanos v. U.S., 547 U.S. 715 (2006).

The EPA and the Corps again attempted to clarify WOTUS with guidance in 2008 and 2011, but ultimately issued new regulations in 2015 pursuant to a presidential executive order. The proposed rule drew over a million public comments before it was published in June 2015 as the "Clean Water Rule." The stated intention was to "clarify" the definition of WOTUS to make jurisdictional determinations more "predictable, less ambiguous and more timely."

The 2015 Clean Water Rule was immediately challenged in several jurisdictions by numerous industry organizations, environmental groups and states. On Oct 9, 2015, the 6th U.S. Circuit Court of Appeals stayed the rule nationwide, effectively reinstating the earlier, 1986 regulations. However, the stay was overturned and the 2015 Clean Water Rule reinstated in January 2018 after the U.S. Supreme Court determined that rule challenge jurisdiction rests with the district courts, not the circuit courts. Nat'l Ass'n of Manufacturers v. Dept. of Defense, 2018 DJDAR 703 (U.S. Jan. 22, 2018). The Corps and the EPA quickly moved to suspend the effective date of the 2015 rule to 2020, but were enjoined on Aug. 16, 2018, when a court found they failed to comply with the Administrative Procedures Act. South Carolina Coastal Conservation League v. Pruitt, No. 2-18-cv-330-DCN.

Meanwhile, district courts in North Dakota, Georgia and Texas issued their own stays of the 2015 Clean Water Rule. As a result, that rule has been reinstated in 22 states and the remaining 28 states are subject to the 1986 rule, as modified by Solid Waste Agency, Rapanos and agency guidance.

Against this backdrop, the proposed rule is being issued pursuant to Executive Order No. 13778, in which President Donald Trump directed the Corps and the EPA on Feb. 28, 2017, to review and rescind or revise the 2015 Clean Water Rule for "consistency with the policy of keeping navigable waters free of pollution as well as promoting economic growth and minimizing regulatory uncertainty." The executive order also directed an interpretation "consistent with the opinion of Justice [Antonin] Scalia in Rapanos," which limited WOTUS on the basis of hydrologic connections.

The proposed WOTUS definition is based on "relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrologic surface connection to those waters." In other words, many of the more controversial wet areas previously considered WOTUS by virtue of a significant nexus with navigable waters would be excluded.

The proposed rule narrows several categories of waterbodies. Tributaries, for example, would be included only if they have perennial or intermittent flow to traditionally navigable waters. Ephemeral tributaries, which flow only briefly during and immediately after rainfall, would be excluded.

Wetlands "adjacent" to traditionally navigable waters would be WOTUS if they have a direct surface connection or abut (touch directly) those navigable waters. Wetlands previously included in WOTUS on the basis of a subsurface connection or a "significant nexus" would be excluded.

Only a subset of ditches would remain jurisdictional: those that function as traditionally navigable waters, or that meet the proposed tributary definition if constructed in a tributary or an adjacent wetland.

In addition, the proposed rule codifies several exclusions reflected in longstanding agency practice, such as certain ditches and constructed lakes and ponds, while retaining certain exclusions, such as for groundwater, prior converted cropland, and waste treatment systems.

The effect of the proposed rule, if adopted, would be to significantly reduce the scope of federal jurisdiction, particularly in the arid west, where ephemeral, isolated and other occasionally wet but disconnected landscape features are common across the landscape. Regulation of these features would effectively be left to the states. California has already developed a proposed definition for "wetlands," along with procedures to regulate discharges of dredged or fill material to waters of the state to fill the regulatory gap left by the Supreme Court decisions. The state initiative has stalled and may be retooled to ensure it covers wet features excluded from federal jurisdiction under the proposed rule.

The public will have 60 days from publication in the Federal Register to submit comments, which may number in the hundreds of thousands, so it will likely be some time before a final rule can be adopted. And if adopted, a raft of litigation is likely to follow.