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New Round of Rulemaking by EPA and the Corps of Engineers Define Waters of the United States and the Scope of the Clean Water Act

Andrew Wheeler, Administrator of U.S. Environmental Protection Agency (EPA) along with the U.S. Army Corps of Engineers (Corps) announced a new formal definition of “waters of the United States” (WOTUS) under federal Clean Water Act regulations governing permit reviews on December 11, 2018, promising the American people the new proposed rule defines WOTUS in clear and understandable language such that common sense and local knowledge could make it possible for a landowner to know by observation whether there are federal waters on his or her property.

The proposal is soon to be published in the Federal Register. The proposal is the second phase of EPA’s undertaking to void the 1980’s definition of WOTUS. A comment period on a range of issues related to the new Proposed Rule will run at least 60 days from the date of publication in the Federal Register. That 1980s definition is still in effect in 28 states affected by an injunction issued by a federal district court. A 2015 definition issued by the Trump administration is in effect in 22 states.


The New Proposed Final Rule Defining the Scope of the Clean Water Act

Promising clarity and predictability from the new proposed rule, EPA states that its proposal is in “straightforward” language that will help sustain economic growth. The EPA indicates it based its proposal on careful study and respect for both Supreme Court rulings and the language Congress employed in the Clean Water Act itself. A 2017 Executive Order from the President in February 2017 further affected the choices made in the new proposal, according to EPA’s issued Fact Sheet. Citing Congress’ interstate commerce clause authority, EPA believes the new definition restricts its application to waters that are physically and meaningfully connected to traditional navigable waters.


Six Categories of Waters of the United States

EPA indicates that only six categories of waters are considered to be within its new definition: 1) traditional navigable waters, 2) tributaries that are not ephemeral, 3) certain ditches that serve as or in place of covered tributaries, 4) certain lakes and ponds that are traditional navigable waters themselves, that serve as tributaries, or when flooded annually by a navigable water; 5) impoundments of waters of the United states, and 6) wetlands that physically connect to jurisdictional waters or are directly affected by them. The proposal also describes several categories of waters that are not within its proposed definition: groundwater, ephemeral waters, ditches such as farm and roadside ditches that are not within the navigable or traditional waters definition, stormwater control features, and wastewater process waters or systems.

The EPA also makes special note that the exemption for converted farmland in prior rules is preserved, and the EPA indicates the abandonment of agricultural use will no longer cause exempt converted farmland to be subject to reclassification as WOTUS.


‘Basis and Purpose’

The EPA has published a lengthy “basis and purpose” explanation and justification of the process it has gone through in crafting its new definition. That document will be part of the formal Federal Register proposal. Comments will be taken on many specifics of the proposed rule and on several aspects of the EPA’s analysis. For example, EPA invites comment on its legal history discussion and interpretation, the definitions of terms used within the proposal, the best means of implementing the rule, and on whether particular means of identifying wetlands should be preferred for purposes of clarity in field application of the rule.

EPA’s emphasis on clarity and its claim that this proposal is a serious change for a better economy was likely expected, given the amount of publicity and length of time invested so far in legal battles over the propriety of EPA efforts to change the rule.


Overly Optimistic?

Detractor suggest that this new definition and it’s attempt to settle the large body of litigation of WOTUS may be overly optimistic in two respects: 1) The Trump administration does not claim huge economic value added or benefit from the rule, even if most states do not seek to regulate “waters” or areas that are eliminated from being jurisdictional. The maximum predicted is between $28 and $266 Million Dollars of benefit from the new rules, offset by no more than $47 Million Dollars of foregone benefits from the prior rule. 2) The actual proposed definition, while put forth in logical structure, still includes some fuzzy or unclear language. For example, the key definition of the term “waters of the United States” includes the following:


  • . . .the term “waters of the United States” means:

Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce,including the territorial seas and waters which are subject to the ebb and flow of the tide. . . .


Conclusion and Implications

Detractors suggest that the italicized phrase above undoes much of the clarity in the EPA’s and Corps’ proposal. While most courts have insisted “navigable waters” have to in fact be navigable, and the President has been seeking to appoint conservatives as judges that enforce the laws as written, the EPA appears by its choice of words to be inviting all sorts of inventive ideas about how future commerce could be conducted in order for some previously non-jurisdictional water body to be included within its and the Corps’ authority under this definition.

(Harvey M. Sheldon)