What Are ‘Waters of the United States’?

The Trump Administration Just Proposed a New Definition. Will It Fly?

The Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engineers (USACE) jurisdiction over the discharge of pollutants to navigable waters, which is expressly prohibited without authorization under a federal permitting program. “Navigable waters” are defined in section 1362 as the “waters of the United States” (WOTUS).

Determining if a discharge is occurring into the WOTUS is critical to determining whether a permit is going to be required. Regulations promulgated to further define WOTUS, combined with court decisions, have caused a great deal of uncertainty in determining whether a permit is required, which causes greater potential for compliance issues at any mine, processing facility, or other site discharging a waste stream.

The Background

After two Supreme Court decisions, the EPA and USACE promulgated a new regulation under President Obama in 2015, which was designated the “Clean Water Rule: Definition of ‘Waters of the United States’’’ (CWR). (80 FR 37054, June 29, 2015). Under this rule, WOTUS included waters with a significant nexus to traditional navigable waters.

It subjected certain categories of waters to jurisdiction, including tributaries with certain features (such as a bank and a high water mark), “adjacent waters” that are within a certain distance of jurisdictional waters, and certain “isolated waters” of ecological importance (such as prairie potholes). Many opposed the rule, believing it went too far, and as a result, many states filed suit against its enforcement. Eventually injunctions against its enforcement were issued for 28 states, causing the pre-2015 rule to be in effect in those states.

In 2017, the Trump administration initiated rule makings aimed at repealing or revising the CWR, “the suspension rule.” This rule was aimed at changing the effective date of the CWR, which would return all states the pre-2015 definition of WOTUS.

The suspension rule was finalized in February 2018, and an additional lawsuit was filed to enjoin enforcement of the suspension rule. A nationwide injunction against the suspension rule was issued in South Carolina Coastal Conservation League v. Pruitt on Aug. 16, 2018. This decision put the CWR back into effect in the 22 states without specific injunctions against it, and put back into place the injunctions against the CWR in the other 28 states.

Current Events

On Dec. 11, 2018, the EPA and USACE proposed a new regulation defining the WOTUS. This regulation clarifies federal authority under the CWA. The administration considers this the second step in the two-step process to “review and revise the definition” in order to “to increase CWA program predictability and consistency.” It has not officially been published in the Federal Register, but comments will most likely be due 60 days from publication.

The 253-page current proposal can be found on EPA’s website. Some highlights that the rule proposes to do are:

A. Eliminate the case-by-case determination of the significant nexus standard, and replace it with a more in-depth definition of what the WOTUS includes.

B. Limit the definitions of tributaries, lakes, ponds and nonadjacent wetlands, to those that have at least perennial and intermittent flow, and exclude ones with only ephemeral flows.

C. Establish that impoundments will not change the jurisdictional status of tributaries.

D. Define “adjacent wetlands” as those with a direct surface connection, and require inundation or perennial or intermittent flow between the wetland and jurisdictional water.

E. Remove the permitting requirement to dreg or fill ephemeral streams, man-made ditches, or wetlands not covered under the definition of WOTUS.

EPA and USACE had a webinar scheduled for Jan. 10, 2019, and were supposed to conduct a public hearing on Jan. 23, 2019. However, both of these were postponed due to the government shutdown. EPA’s website itself still has remnants of the 2017 rulemaking, including details about the comment period for the suspension rule that ended in November 2017. On this same page it announces the new regulation and provides links to various fact sheets over the new rule.

Although this is just a pre-proposal, there have already been hundreds of comments on the rule’s regulagions.gov page. The primary concern for some is that the rule’s clearly defined view of the WOTUS will limit the jurisdiction of the CWA, reducing its effectiveness.

The agency has conceded that some streams and wetlands regulated under the 2015 rule would not be regulated under the new rule. In their proposal, EPA and USACE explain that this adjustment is to ensure the CWA is not being applied more broadly than Congress intended under its Commerce power, and that the regulation respects the state’s traditional state powers.

Others, however, believe the new rule finally brings some clarity to the definition, especially since the Supreme Court decisions. Since those, exactly when a business needs to get a permit has been a contentious subject. Supporters of the rule believe it eliminates a lot of the case-by-case determinations and will allow EPA’s application of the rule to be more consistent across the country. This would give businesses more confidence and reduce some of the legal expenses involved with regulatory uncertainty.

What All of This Means for You

For now, this rule is only a proposal and is still subject to change either before its initial publication or after public comment in the final rule. When the new rule is published in the Federal Register, consider how the new rule will impact your operation and submit comments on EPA’s website.

Keeping up with the EPA and USACE rulemakings and new court decisions is critical to staying caught up with permitting compliance. However, this does not remove all risk associated with mining or construction activities that have the potential to impact jurisdictional waters, or other waters that may have a similar potential.

Although the proposed rule reduces the scope of the CWA, provides more certainty to the industry, and clarifies some longstanding contentions within its definition, companies should conservatively consider its application. When the rule is finalized, consider obtaining a jurisdictional determination from EPA and USACE for specific waters.

Even when a rule is more laid out and defined, as this one is, there can still be ambiguities that need to be better clarified in the future. In addition, and like the CWR and suspension rule, we anticipate this rule will be subject to litigation which will further complicate its application and the extent it is legally in effect.

Daniel Fanning is an associate at Husch Blackwell LLP. He has experience with permitting, reporting, inspecting, and working with the EPA. Fanning helps clients understand how to comply with environmental regulations and statutes. He can be reached at [email protected].

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