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December 12, 2018
Agencies’ proposal offers WOTUS “bright line”

With the release of their proposed redefinition of the Clean Water Act (CWA) term waters of the United States (WOTUS), the EPA and the Army Corps of Engineers are, technically at least, midway in their journey toward replacing the Obama administration’s 2015 WOTUS definition. The prepublication version of the proposal is available here.

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The current EPA/Corps’ strategy for replacing the 2015 definition has two parts. Part one would repeal the 2015 definition; that action has been proposed and is under review by the agencies. Part two is the redefinition itself, which will also be reviewed pending closure of a 60-day public comment period, which, given extensive public interest in the action, will likely be extended.

Following those reviews, the agencies will issue final rules, which may differ somewhat from the proposals, but probably not enough to dissuade states, environmental groups, and other stakeholders from challenging the rules in court. It would not be surprising if those challenges make their way to the Supreme Court, which has historically taken a keen interest in the jurisdiction of the CWA (in part because of conflicting rulings by the federal lower courts) and which has issued three relevant opinions. But these very narrow decisions have, to a large degree, contributed to broad uncertainty and disagreement on the scope of WOTUS. Accordingly, the Supreme Court may yet seek to put its stamp on something that is at least close to a final clarification. What this all means is that we are still a very long way from the day the nation is in possession of a firm WOTUS definition.

Significant nexus test

Clarification is also the goal of the proposed WOTUS redefinition. According to the EPA/Corps, the 2015 rule failed to achieve its goal of clarifying WOTUS because it relied to a large extent on the significant nexus test articulated by Supreme Court Justice Anthony Kennedy in Rapanos v. United States (2006). Kennedy stated that a water that was not navigable (the CWA criterion for jurisdiction) could still be jurisdictional if it could be determined that it “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Kennedy said that in cases of jurisdictional uncertainty a significant nexus test must be conducted on a case-by-case basis. This provided the agencies with the opening to apply jurisdiction to certain water features that are physically remote from in-fact navigable waters and ephemeral (that is, that hold water only as the result of precipitation). However, Kennedy added that the need for the significant nexus test could be largely eliminated if the EPA/Corps developed “more specific regulations.” That essentially is what the redefinition proposal seeks to do.

“The agencies propose to eliminate the case-by-case application of Justice Kennedy’s significant nexus test, proposing instead the establishment of clear categories of jurisdictional waters that adhere to the basic principles articulated in the Riverside Bayview, SWANCC, and Rapanos [the three relevant Supreme Court] decisions while respecting the overall structure and function of the CWA,” state the EPA/Corps.

Clear categories

The proposal would include in the WOTUS redefinition traditional navigable waters, including the territorial seas; tributaries of such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.

The proposed redefinition would not include any ephemeral streams; ditches constructed in upland and ditches with ephemeral flow; groundwater, including groundwater drained through subsurface drainage systems; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater runoff; wastewater recycling structures constructed in upland; and waste treatment systems.

“Today’s proposed definition of WOTUS would establish bright line jurisdictional boundaries that are intended to be easily comprehensible and implementable by the regulated community, and would avoid the potentially extremely complex jurisdictional landscape that could result from litigation over the 2015 Rule,” write the EPA/Corps.

State sovereignty

In addition to developing “bright line” jurisdiction, the proposal seeks to preserve the “traditional sovereignty of States over their own land and water resources.”

“Under this proposed rule, the agencies would not view the definition of WOTUS as conclusively determining which of the nation’s waters warrant environmental protection; rather, the agencies interpret the definition as drawing the boundary between those waters subject to federal requirements under the CWA and those waters that States and Tribes are free to manage under their independent authorities,” the agencies write.

Programs impacted

The proposed WOTUS redefinition would have a profound impact on the EPA/Corps’ implementation of the CWA. Every program and set of regulations the agencies have developed to meet the CWA’s instructions to restore and maintain the quality of the nation’s waters would be affected. The sweep of the proposal can be understood in the context of the following regulatory Parts into which the redefinition would be inserted:

  • Army Corps of Engineers
    • 33 CFR Part 328—Jurisdictional Limits of the Authority of the Corps of Engineers under the Clean Water Act
  • EPA
    • 40 CFR Part 110—Discharge of Oil
    • 40 CFR Part 112—Oil Pollution Prevention
    • 40 CFR Part 116—Designation of Hazardous Substances
    • 40 CFR Part 117—Determination of Reportable Quantities for Hazardous Substances
    • 40 CFR Part 122—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System
    • 40 CFR Part 230—CWA Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material
    • 40 CFR Part 232—CWA 404 Programs Definitions; Exempt Activities Not Requiring 404 Permits
    • 40 CFR Part 300—National Oil and Hazardous Substances Pollution Contingency Plan
    • 40 CFR Part 302—Designation, Reportable Quantities, and Notification
    • 40 CFR Part 401—General Provisions

If you are regulated or potentially regulated under any of these programs, the proposed redefinition may be a part of your future.

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