On January 23, 2020, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released their final regulations redefining the term “waters of the United States.” In 2019, the agencies had repealed the Obama Administration’s 2015 “Clean Water Rule,” which had expanded the scope of “waters of the United States.” Now, with release of their new “Navigable Waters Protection Rule,” the EPA and COE have taken a step back toward the 1986 version of the regulations, which the 2015 Rule had replaced.
The scope of “waters of the United States” is important because unless a waterbody meets the definition, the federal government has no authority over that waterbody or over certain activities affecting it. For instance, the Clean Water Act applies only to “waters of the United States.” For developers and construction contractors, this is critical to determining whether an EPA NPDES construction stormwater discharge permit and/or a COE Section 404 wetlands dredging/filling permit is required for a project.
The 2015 Clean Water Rule had been controversial in part because it included three new categories in the definition of “waters of the United States” (aka “jurisdictional waters”): all tributaries of primary waters, “adjacent and neighboring waters,” and waters determined to be jurisdictional waters based on a case-by-case evaluation of whether they have a significant nexus to a primary water. While environmental groups had generally hailed the 2015 Rule, many construction and other industry groups were critical of the expanded definition and of the lack of clarity of the “significant nexus” test in particular.
The new “Navigable Waters Protection Rule” establishes four categories of jurisdictional waters and, in doing so, rejects the “significant nexus” test of the 2015 Rule:
Territorial Seas and Traditional Navigable Waters – This category has always been part of the Clean Water Act and it includes “territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate and foreign commerce.…”
Tributaries – “Tributary” is defined as a “river, stream, or similar naturally occurring surface water channel that contributes surface flow” to a territorial sea or traditional navigable water “in a typical year.” The contribution must be direct or indirect via another tributary or one of the two categories below. A tributary must be perennial (flowing continuously year-round) or intermittent (sometimes flowing continuously, but not only in response to precipitation).
Lakes and Ponds, and Impoundments of Jurisdictional Waters – This encompasses “standing bodies of open water that contribute surface water flow” to a traditional navigable water “in a typical year.” This contribution can be direct or indirect through another lake, pond, or impoundment or a Tributary or Adjacent Wetland.
Wetlands Adjacent to Jurisdictional Waters – The definition of this category is more complex, but essentially means wetlands that touch one of the other three categories of jurisdictional waters, are flooded by such a waterbody in a typical year, or are separated from such waterbody by a natural feature or by a man-made feature that allows a direct surface connection during a typical year.
Twelve categories of waters are specifically excluded from the definition of “waters of the United States,” among them: groundwater; “ephemeral” features that flow only in direct response to precipitation, such as swales, gullies or pools; water-filled depressions incidental to mining and construction activity, and pits used to obtain fill, sand or gravel, that are constructed or excavated in upland or in non-jurisdictional waters; and stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate or store stormwater run-off.
As its name suggests, the “Navigable Waters Protection Rule” generally restricts the scope of “waters of the United States” to traditional navigable waters or waters that have a specific physical connection to them. In doing so, the Rule “preserves the traditional sovereignty of the States over their own land and water resources.” It seems likely that many states will respond by promulgating their own laws and regulations governing their “waters of the State” so that certain waterbodies within their borders are still subject to environmental regulation, but by the State rather than the U.S. EPA or U.S. Army Corps of Engineers. A concern is that this will result in a patchwork of differing requirements from state to state that will make compliance difficult for developers, construction contractors, and others. On a federal level, however, the new Rule undoubtedly will result in fewer construction projects being subject to Clean Water Act restrictions.
The new Navigable Waters Protection Rule is sure to be a source of litigation. In fact, there are still ongoing challenges to the 2015 Clean Water Rule as well as the 2019 repeal of that Rule. Only time will tell the full impact of the new Rule.