The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) on April 21, 2020, issued a long-awaited final rule defining the term "Waters of the United States" (WOTUS) pursuant to the Clean Water Act (CWA).1 The Navigable Waters Protection Rule: Definition of ''Waters of the United States'' 85 Fed. Reg. 22250 (April 21, 202). The WOTUS Rule, which went into effect on June 22, 2020, sets forth the geographic reach of the agencies' authority to regulate streams, wetlands and other water bodies pursuant to the CWA. The WOTUS Rule replaces one of the Obama Administration's most controversial environmental regulations, which was viewed by many as a vast overreach of federal jurisdiction.
Replacing the 2015 definition of WOTUS has been a priority of President Donald Trump since he took office. On Feb. 28, 2017, President Trump signed an Executive Order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule," which directed the agencies to begin the process of rescinding or revising the WOTUS Rule (See 82 Fed. Reg. 12497). Then hinting of what was to come, the Executive Order stated that a revised WOTUS rule will be written in a manner consistent with the plurality U.S. Supreme Court opinion of the late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).2 The Scalia opinion provides that "only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams, oceans, rivers and lakes' " qualify as waters of the United States that are subject to regulation under the CWA. His opinion specifically excludes for CWA jurisdiction "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." Rapanos at 739. In February 2019, the agencies issued a proposed Rule with the stated intention "to increase CWA program predictability and consistency by increasing clarity as to the scope of 'waters of the United States' federally regulated under the Act." 84 Fed. Reg. 4154 (Feb. 14, 2019).
The WOTUS Rule interprets the term ''waters of the United States'' to encompass four basic classifications of jurisdictional waters: 1) the territorial seas and traditional navigable waters; 2) perennial and intermittent tributaries that contribute surface water flow to such waters; 3) certain lakes, ponds and impoundments of jurisdictional waters; and 4) wetlands adjacent to other jurisdictional waters. 33 C.F.R. § 328.3(a)(1)-(4). Other aspects of the Rule provide further clarity by further defining terms within those four categories.
On the other hand, the WOTUS Rule specifically defines "non-jurisdictional" waters that are specifically excluded from the definition of "waters of the United States." 33 C.F.R. § 328.3(b)(1)-(12). The Rule first states that all waters not specifically identified as "jurisdictional" in Subsection (a) discussed above are not jurisdictional. Thus, there is a presumption that the scope of jurisdiction is limited to that group of four types of jurisdictional waters. In turn, the WOTUS Rule specifically excludes the following categories of waters: groundwater, including groundwater drained through subsurface drainage systems; ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills and pools; diffuses stormwater runoff; certain types of ditches; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; artificial lakes and ponds constructed in upland (e.g. water storage areas); 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; groundwater recharge and wastewater recycling structures; and waste treatment systems. 33 C.F.R. § 328.3(b)(1)-(12). This adds considerable clarity to the scope of the CWA and may reduce permit processing times.
The WOTUS Rule also provides definitions of key terms for defining jurisdictional streams. For example, the term "tributary" is defined to include a river, stream or similar naturally occurring surface water channel that contributes surface water flow to one of the four defined jurisdictional waters. 33 C.F.R. § 328.3(c)(12). The term "perennial" means "surface water flowing continuously year-round" while term "intermittent" means surface water flowing continuously during certain times of the year and more than in direct response to precipitation." 33 C.F.R. § 328.3(c)(8) and (5). In contrast, an unregulated "ephemeral" stream has "surface water flowing or pooling only in direct response to precipitation." 33 C.F.R. § 328.3(c)(3). Lakes and ponds, and impoundments of jurisdictional waters must also have a connection to a jurisdictional water. 33 C.F.R. § 328.3(c)(6). The rule excludes most ponds and ditches dug in uplands or for the purpose of conveying water.
Finally, the WOTUS Rule addresses the concept of "adjacent" wetlands. 33 C.F.R. § 328.3(c)(1). Under the Rule "adjacent wetlands" are defined to include wetlands that 1) "abut" meaning "touch at least at one point" one of the other classifications of jurisdictional waters; 2) are "inundated by flooding" from one of the other classifications of jurisdictional waters; 3) are physically separated from another jurisdictional water only by a natural berm, bank, dune, or similar natural feature" or 4) or are physically separated from another jurisdictional water only by an artificial dike, barrier or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and that water "in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature." 33 C.F.R. § 328.3(c)(1)(i)-(iv). The rule clarifies that "an adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year." 33 C.F.R. § 328.3(c)(1)(iv).
OTHER DEVELOPMENTS IN FEDERAL CWA: NATIONWIDE PERMIT 12 VACATED
On April 15, 2020, the U.S. District Court for the District of Montana held that the U.S. Army Corps of Engineers' (Corps) Nationwide Permit (NWP) 12 was arbitrary and capricious and violated the Endangered Species Act (ESA). Northern Plains Resource Council, et al., v. U.S. Army Corps of Engineers, et al., CV-19--44-GF-BMM.
Section 404 of the CWA requires that any party seeking to construct a project that will discharge dredged or fill material into jurisdictional waters to obtain a permit. See 33 U.S.C. § 1344(a), (e). The Corps issues individual fill permits on a case-by-case basis. 33 U.S.C. § 1344(a). In turn, the Corps also issues general nationwide permits to streamline the permitting process. NWPs are available for certain categories of activities that are "similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. § 1344(e)(1). NWP 12 authorizes discharges of dredged or fill material into jurisdictional waters as required for the construction, maintenance, repair and removal of utility lines and associated facilities, which includes any pipe or pipeline for the transportation of any gaseous, liquid, liquescent or slurry substance, including oil and gas pipelines. 82 Fed. Reg. at 1985-86 (January 6, 2017). The discharge is limited to one-half acre of jurisdictional waters for each single and complete project. Every NWP is subject to 32 General Conditions contained in the Federal Regulations. 82 Fed. Reg. 1998-2005. For example, General Condition 18 prohibits the use of any NWP likely to directly or indirectly jeopardize threatened or endangered species under the ESA or destroy or adversely modify designated critical habitat for such species. 82 Fed. Reg. at 1999-2000. A party wishing to use NWP 12 must submit a preconstruction notification to the Corps if a permittee believed an activity might affect listed species or critical habitat.
The lawsuit challenged the reissuance of NWP 12 as well as the NWP's application to the Keystone XL
Pipeline, under the theory that the Corps did not conduct programmatic review of the NWP under the ESA. The Corps did not consult with the U.S. Fish and Wildlife Service concerning the overall impacts of the NWP, relying instead on the project-specific review under General Condition 18. Essentially, the plaintiffs sought a broad examination of the nationwide program's potential impacts on listed species and critical habitat prior to it being used on a case-by-case basis. The federal district court for the District of Montana agreed with plaintiffs, vacating NWP 12 pending completion of a programmatic consultation process. The court found that there was "resounding evidence" in the record that authorized discharges may affect endangered and threatened species and critical habitat, and that the Corps could not circumvent consultation requirements by relying either on project-level review or on General Condition 18. On May 11, 2020, the district court modified its injunction to apply only to new oil and gas pipeline construction, which the court said was the type of project likely to pose the greatest threat to listed species. On May 28, 2020, the U.S. Court of Appeals for the Ninth Circuit denied emergency motions for partial stay pending appeal as it applies to Keystone XL Pipeline and other oil and natural gas pipelines holding that the appellants did not demonstrate a likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.
Typically, when a court vacates a rule and remands it to an agency, the effect is national. However, recent questions have been raised as to whether a district court has the authority to issue a nationwide injunction. This was the subject of debate concerning the Obama WOTUS Rule, which remained in effect in certain jurisdictions and not in others, creating a patchwork of regulations and confusion. But in this case, the court issued an injunction against the Corps' verification of new preconstruction notifications under NWP 12 to projects involving the construction of oil and gas pipelines. Thus, it appears that the injunction remains nationwide until the Corps publicly addresses this issue.
1Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.
2 "Waters of the United States" Rule Among the First on Trump's Chopping Block , Holland & Knight Energy and Natural Resources Blog, March 6, 2017
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.