U.S. EPA and Army Corps Publish Final WOTUS Rule
Date: April 28, 2020
On April 21, U.S. EPA and the U.S. Department of the Army (Army Corps) published the long-awaited final “waters of the United States” rule, which defines the scope of waters that are federally regulated under the Clean Water Act and will go into effect on June 22, 2020. It is viewed by many as a “rollback” compared to President Obama’s 2015 waters of the United States rule and likely will be challenged by environmental groups and states alike.
U.S. EPA and the Army Corps state that the rule clarifies which waters are subject to federal jurisdiction consistent with the U.S. Supreme Court decisions United States v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. United States (SWANCC), and Rapanos v. United States, and consistent with President Trump’s 2017 Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
The rule identifies the following four categories as waters of the United States:
- The territorial seas and traditional navigable waters.
- Perennial and intermittent tributaries that contribute surface water flow to such waters.
- Certain lakes, ponds and impoundments of jurisdictional waters.
- Wetlands adjacent to other jurisdictional waters.
Waters not included in these four categories are excluded from the definition of the waters of the United States, along with 11 other categories of waters the rule specifically excludes:
- 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.
- Diffuse stormwater runoff and directional sheet flow over upland.
- Ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations.
- Prior converted cropland.
- Artificially irrigated areas that would revert to upland if artificial irrigation ceases.
- Artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters.
- Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand or gravel.
- Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate or store stormwater runoff.
- Groundwater recharge, water reuse and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters.
- Waste treatment systems.
The most significant distinction between this final rule and President Obama’s 2015 rule involves streams and wetlands adjacent to and/or contributing to traditional navigable waters or territorial seas. The 2015 rule (which was repealed by President Trump on September 12, 2019) covered streams and wetlands determined on a case-by-case basis to have a “significant nexus” to traditional navigable waters (consistent with Justice Kennedy’s concurring opinion in the Rapanos decision). President Trump’s 2020 rule, however, instead covers streams and wetlands that “maintain a sufficient surface water connection to traditional navigable waters or the territorial seas” (consistent with Justice Scalia’s plurality opinion in the Rapanos decision).
U.S. EPA and the Army Corps intend this final rule to strike the appropriate balance between the Clean Water Act’s purpose to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C.§ 1251(a), while recognizing, preserving and protecting “the primary responsibilities and rights of States to … plan the development and use (including restoration, preservation, and enhancement) of land and water resources….” 33 U.S.C. § 1251(b). Further, they believe this final rule provides clarity and greater regulatory predictability than the 2015 rule.
Industry groups and agricultural interest groups have hailed the 2020 rule, but that likely will not slow the legal battles on the horizon. Consistent with the Administrative Procedure Act and the Supreme Court’s decision in National Association of Manufacturers v. Department of Defense, challenges will be filed in federal district courts throughout the nation and could result in a patchwork approach similar to what occurred with the 2015 rule.
FOR MORE INFORMATION
For more information, please contact:
Andrew L. Kolesar
or any other member of our Environmental practice.
This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.
This document may be considered attorney advertising in some jurisdictions.
© 2020 THOMPSON HINE LLP. ALL RIGHTS RESERVED.