“Clark, that’s the gift that keeps giving the whole year.”
– Cousin Eddie, National Lampoon’s Christmas Vacation (1989)
For years, your authors have never had to worry about what would be the topic of their Southwestern Farm Press water law article, because Waters of the United States would provide. 2019 was no exception.
The Clean Water Act gives the Environmental Protection Agency and the U.S. Army Corps of Engineers authority to regulate “discharges” of “pollutants” to “navigable waters,” with each term given a definition in the CWA. However, the CWA defines “navigable waters” as “waters of the United States” but then fails to provide a definition of WOTUS, leaving EPA and USACE to define the term by regulation.
In 2015, the Obama administration attempted to clarify things with a new definition of WOTUS but the new rule was immediately hamstrung by litigation alleging it was unconstitutionally broad.
On October 22, 2019, EPA finalized a rule that repealed the 2015 definition and put back in its place the pre-2015 definition of WOTUS. This rule went into final effect on December 23, 2019. Repealing the 2015 WOTUS definition was “Step One” in the Trump administration plan to revise the WOTUS definition. “Step Two” was to enact a new definition providing clarity in the definition of WOTUS so regulated parties have some certainty whether a water falls under CWA jurisdiction without an expensive and time-consuming environmental evaluation or litigation.
In a bit of a time twist, the proposed rule to replace the pre-2015 rule (which replaced the 2015 rule – confused yet?) was issued on December 11, 2018.
The proposed new definition highlights six categories of water that would be considered WOTUS:
- Traditional Navigable Waters (TNWs): Large rivers, lakes, tidal waters, and the territorial seas.
- Tributaries: Rivers and streams that flow into TNWs. The proposal also specifies that such tributaries must flow more often than just when it rains (i.e. not “ephemeral waters”).
- Ditches (artificial channels) that are (a) navigable, (b) that would meet the definition of “tributary,” or (c) built in a wetland adjacent to a TNW.
- Lakes and ponds navigable themselves or that contribute flow to a TNW through a perennial or intermittent flow connecting the two waters.
- Impoundments of other waters that meet the WOTUS definition would themselves be considered a WOTUS, and
- Wetlands that physically touch another waterbody satisfying the WOTUS definition would also be considered a WOTUS themselves.
Importantly, the Step Two proposed WOTUS definition also includes a number of specific exclusions, including exclusions for ephemeral waters (features that only contain water during or in response to rainfall), groundwater, and prior converted cropland (provided that the exclusion would cease to apply if the cropland is no longer used for crop production).
EPA and USACE continue to review the received comments. Observers expect to see a final rule sometime in 2020. In the meantime, although formal comments have closed, those in the regulated community can still make their input on the proposed rule known to their federal legislators, EPA, and USACE.