Waters of the United States

On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) released their Navigable Waters Protection Rule to define “waters of the United States” (WOTUS). According to the news release the final definition recognizes the relationship between the federal government and states in managing land and water resources. “The EPA’s Navigable Waters Protection Rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government."

Congress, in the Clean Water Act, explicitly directed that the Agencies to protect “navigable waters.” Under the CWA, “the discharge of any pollutant by any person shall be unlawful.” 33 U. S. C. § 1311(a). “The discharge of a pollutant” is defined broadly to include “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). The Navigable Waters Protection Rule regulates the waters that make up this system and the core tributary systems that provide perennial or intermittent flow into them.

The final rule also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.

The Navigable Waters Protection Rule outlines four clear categories of waters that are considered “waters of the United States:”

1. Territorial seas and traditional navigable waters (TNWs)
2. Tributaries and intermittent rivers and streams that contribute surface flow more often than just after a single precipitation event.
3. Lakes, ponds, and impoundments of jurisdictional waters are jurisdictional where they contribute surface water flow either directly or through channelized nonjurisdictional surface waters, through artificial features, or through natural features.
4. Wetlands that physically touch other jurisdictional waters are “adjacent wetlands.”

The final rule also outlines what are not “waters of the United States.” These include waterbodies that are not included in the four categories of “waters of the United States” listed above to provide under the Clean Water Act.

• Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands.
• Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools.
• Diffuse stormwater run-off and directional sheet flow over upland.
• Many farm and roadside ditches.
• Prior converted cropland retains its longstanding exclusion. This exclusion will cease to apply when cropland is abandoned and has reverted to wetlands.
• Artificially irrigated areas.
• Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in nonjurisdictional 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 excavated or constructed to convey, treat, infiltrate, or store stormwater run-off.
• Groundwater recharge, water reuse, and wastewater recycling structures.
• Waste treatment systems have been excluded from the definition of “waters of the United States” since 1979.

If you recall back in 2015 Under President Obama the EPA ‘Waters of the United States’ Rule.” This rule contained the definition of “waters of the United States” promulgated by the U.S. EPA in 2015, intended to expand protection and regulation under the 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, 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.

On October 22, 2019, the Environmental Protection Agency and Department of the Army (the agencies) repealed the 2015 Rule and re-codify the regulatory text that existed prior the definition promulgated in 1986/1988. Now that old definition has been replaced with the new Navigable Waters Protection Rule that will go into effect in 60 days from publication in the Federal Register, as long as it is not successfully challenged in court.