The Waters of the United States

On June 27th 2017 the EPA Administrator, Scott Pruitt, along with Mr. Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works, signed the following proposed rule intended to review and revise the definition of “waters of the United States” consistent with the Executive Order signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

The definition of “waters of the United States” under the Clean Water Act promulgated by the U.S. EPA in 2015, intended to expand protection and regulation under the 1972 Clean Water Act to include streams and wetlands and any body of water that the EPA previously needed to determine to be a “significant Nexus” to the “navigable waters of the United States” on a case by case basis. According to that version of the waters of the United States definition included navigable waterways and their tributaries. The rule greatly expanded the waters included in regulation to include:    Streams, regardless of their size of frequency of flow.  Wetlands and open waters in riparian areas and the 100 year floodplains

The 2015 version of the Water of the United States rule unleashed a torrent of Federal litigation. Thirty-one states, many local governments, and private industry filed suite asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied several Supreme Court decisions and long standing practice. Various Courts of Appeal challenges had been consolidated before the Sixth Circuit in Cincinnati, which granted a nationwide wide stay in November 2015.

With that stay in place the definition of "waters of the United States" currently in effect is the definition promulgated in 1986/1988, implemented consistent with subsequent Supreme Court decisions and guidance documents. Under the new rule promulgated last week that definition will stay in place.

40 CFR 230.3(s) The term waters of the United States means:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters including interstate wetlands;
3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
2. (From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
3. Which are used or could be used for industrial purposes by industries in interstate commerce;
4. All impoundments of waters otherwise defined as waters of the United States under this definition;
5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
6. The territorial sea;
7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

The EPA is now proposing to re-codify the regulations that existed before the 2015 Clean Water Rule stating that it will provide continuity and certainty for regulated entities, the States, agency staff, and the public. The agency will also pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of “waters of the United States.”