On April 21, 2020, The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”) was published in the Federal Register, and will become effective on June 22, 2020. Publication of the 2020 WOTUS Rule in the Federal Register is the final step in the Trump Administration’s repeal and replacement of the 2015 Waters of the United States Rule (“2015 WOTUS Rule”), issued under the Obama Administration. Due to litigation that ultimately resulted in a stay of the 2015 WOTUS Rule prior to the effective date, that rule never became effective nationwide.
The 2020 WOTUS Rule seeks to provide certainty regarding the extent and reach of Federal Water Pollution Control Act (“CWA”) jurisdiction and permitting through the establishment of bright line rules, added definitions, and the elimination of the “significant nexus” test established by Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) (hereafter “Rapanos”). However, whether the 2020 WOTUS Rule will suffer the same fate as the earlier 2015 WOTUS Rule remains to be seen due to threatened and anticipated litigation by a number of states and environmental organizations. To wit, on February 13, 2020, thirteen (13) environmental groups filed a Notice of Intent to sue the Agencies over the 2020 WOTUS Rule. Litigation regarding the earlier repeal rule, which made effective once again the 1988 United States Environmental Protection Agency (“USEPA”) and the 1986 United States Army Corps of Engineers (“Corps”) versions of the WOTUS definition until the 2020 WOTUS Rule is in effect, continue to make its way through the federal courts.
On January 23, 2020, USEPA and the Corps (together referred to as “the Agencies”) released a prepublication version of the 2020 WOTUS Rule, which we provided significant analysis of in the Feature Article published in the March 2020 issue of the California Water Law & Policy Reporter. Our full analysis can be accessed here. Below we provide a brief summary of the changes the 2020 WOTUS Rule will seek to implement, when and if the rule becomes effective.
In drafting the 2020 WOTUS Rule, the Agencies sought to reduce controversy, provide clarity, and adhere closely to the limits placed on the extent of CWA jurisdiction by the Constitution and the Supreme Court. The result of this effort is a rule that streamlines both the categories of water features considered “jurisdictional-by-rule,” and codification of the new WOTUS definition – going forward the definition will appear in only two sections of the Code of Federal Regulations (33 CFR 328.3, and 40 CFR 120.2), as opposed to the thirteen (13) regulations in which it was previously found.
Pursuant to the 2020 WOTUS Rule, the following four (4) features are considered jurisdictional-by-rule: (1) traditional navigable waters, including the territorial seas; (2) tributaries that contribute perennial or intermittent flow to such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters.
The following eleven (11) categories of waters will not be considered WOTUS under the rule: (1) groundwater; (2) ephemeral water features that flow only in direct response to precipitation; (3) diffuse stormwater runoff and directional sheet flow over upland; (4) ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations; (5) prior converted cropland; (6) artificially irrigated areas that would revert to upland if irrigation ceased; (7) artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters; (8) water-filled depressions excavated or constructed 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; (9) stormwater control features constructed or excavated in upland or in non-jurisdictional waters; (10) groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and (11) waste treatment systems. Many of these excluded features set forth in the 2020 WOTUS Rule adhere closely to the 2015 WOTUS Rule’s categories of non-jurisdictional waters.
Several of the non-jurisdictional features listed above, such as ditches and artificial ponds, have been refined (e.g., to indicate that the features must be constructed in uplands or in non-jurisdictional waters to qualify for the relevant exemption) in the 2020 WOTUS Rule. The rule also codifies that the following two additional categories of water features are non-jurisdictional: (1) ephemeral water features that flow only in direct response to precipitation; and (2) diffuse stormwater runoff and directional sheet flow over upland.
The Agencies have sought to provide the regulated community with further clarity regarding implementation of the 2020 WOTUS Rule by including with the lists of jurisdictional-by-rule and non-jurisdictional waters sixteen (16) definitions that provide context for determining whether an artificial water feature is constructed in uplands, and whether a feature ought to be considered ephemeral, among other considerations important for evaluating a water feature’s jurisdictional status.
The most notable changes and clarifications associated with the 2020 WOTUS Rule include:
- The elimination of ephemeral waters, which are defined as water features that flow only in direct response to precipitation events, as water features subject to CWA jurisdiction. The 2020 WOTUS also provides clarification of the types of breaks in flow that would cause a tributary to lose its jurisdictional status. Notably, the 2020 WOTUS Rule clarifies that channelized flow through a non-jurisdictional feature, such as through a ditch, ephemeral stream, or subterranean river, will not cause a jurisdictional tributary to lose its status.
- The elimination of interstate waters, including interstate wetlands, as a separate category of waters subject to federal jurisdiction. Thus, a water feature must derive its jurisdictional status by falling within one of the four categories of jurisdictional features set forth above. Straddling a state line will no longer be an independent basis for federal jurisdictional over a water feature.
- The elimination of the “significant nexus” analysis established by Justice Kennedy’s concurring opinion in Rapanos.
- The restriction of the categories of lakes, ponds, and impoundments of jurisdictional waters to those that are either navigable-in-fact, or contribute flow in a typical year to a water feature that is considered jurisdictional-by-rule through channelized flow. Again, here, the channelized flow itself need not be jurisdictional to support the necessary connection between jurisdictional features.
- The modification of those adjacent wetlands considered jurisdictional. To be considered jurisdictional under the 2020 WOTUS Rule, the wetlands must: (1) “abut,” meaning “to touch at least at one point or side of,” an otherwise jurisdictional water; (2) have a direct hydrologic surface connection to other jurisdictional non-wetland waters in a typical year; or (3) be separated from jurisdictional waters only by a natural berm, bank, dune, or other similar natural feature would also be subject to federal jurisdictional. Importantly, “wetlands cannot be adjacent to other wetlands; they can only be adjacent to the territorial seas, a traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water.”
In sum, the Joint Rule sets forth a WOTUS definition that reduces agency discretion in delineating jurisdictional waters, and narrows the expanded reach of federal jurisdiction established by the 2015 WOTUS rule through the elimination of the following from the WOTUS definition: (1) numerous types of ephemeral water bodies; and (2) waters that are subject to a case-specific significant nexus analyses, including certain regional water features (i.e., prairie potholes, vernal pools and pocosins), those waters located within the 100-year floodplain of any primary water, and all waters located within 4,000 feet of the high tide line or ordinary high water mark of any jurisdictional water.
Although the 2020 WOTUS Rule’s bright lines and clarifications will likely provide the regulated community outside of California with reduced regulatory jurisdiction, the California State Water Quality Control Board’s (“State Water Board”) recent adoption of a new regulatory program will prevent Californians from receiving similar regulatory reprieve for wetlands. On April 2, 2019, the State Water Board adopted a State dredge and fill program – the “Procedures” – for inclusion in the Water Quality Control Plan for Inland Surface Waters and Enclosed Bays and Estuaries (known as the “SIP”) and the Water Quality Control Plan for Ocean Waters of California (“Ocean Plan”), which become applicable at the end of May 2020. (Our full description and analysis of the Procedures can be accessed here; we note here that the Procedures bring back into the State’s regulatory fold discharges of dredge or fill into waters of the State that would be considered “wetlands” under an expanded state definition that includes the now repealed 2015 WOTUS Rule).
The Procedures are currently the subject of ongoing litigation. On May 1, 2019, certain members of the San Joaquin Tributaries Authority (“Authority”), a Joint Powers Authority, filed a petition for writ of mandate and complaint for mandatory relief in Sacramento County Superior Court. The court initially scheduled concurrent hearings on a demurrer filed by the State Board and the merits of the Authority’s petition for May 22, 2020; however, the court has rescheduled the hearings for June 12, 2020. Current State and County shelter-in-place orders may further impact the date of those hearings, and any potential judicial relief from the Procedures’ applicability.