The Continuing Saga Of "Waters Of The United States": Army Corps And EPA Propose A Further Re-Definition

Yet another new front has developed in the 50-year battle over the reach of the Federal Clean Water Act. Earlier this week, EPA and the Army Corps of Engineers proposed a new rule to limit the government's permitting authority over wetlands, streams and other "waters of the United States." The new rule is based on the U.S. Supreme Court's decision in Sackett v EPA, which overturned the Court's own 20-year precedent defining the outer limits of the Clean Water Act. (Our client alert on Sackett is available here.)

In Sackett, the Court ruled that the government cannot regulate bodies of water unless they have "relatively permanent flow" or a "continuous surface connection" to bodies of water like lakes, rivers, or the seas. EPA's new proposal is intended to implement Sackett by further defining these and other terms under the Clean Water Act.

For example:

• The interstate waters category would be deleted from the definition of "waters of the United States" on the basis that this category can include bodies of water that are not "relatively permanent, standing, or continuously flowing" or that are not themselves connected to a downstream traditional navigable water, which are touchstones established by Sackett.
• Relatively permanent flow would be defined to mean "standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season."
• Tributary would be as a body of water with "relatively permanent flow, and a bed and banks, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relative permanent flow." The definition excludes a body of water that "contributes surface water flow to a downstream jurisdictional water through a feature such as a channelized non-jurisdictional surface water feature, subterranean river, culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, wetland or other similar feature, if such feature does not convey relatively permanent flow."
• Continuous surface connection is now a defined term to mean "having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water." Thus, the definition of "continuous surface connection" consists of a two-prong test that requires both (1) abutment of a jurisdictional water; and (2) having surface water at least during the wet season.

Key to the definitions of "relatively permanent flow" and "continuous surface connection" is the phrase "at least during the wet season." This phrase is intended to include "extended periods of predictable, continuous surface hydrology occurring in the same geographic feature year after year in response to the wet season, such as when average monthly precipitation exceeds average monthly evapotranspiration." The preamble to the rule further clarifies that "surface hydrology would be required to be continuous throughout the entirety of the wet season."

In addition to these important definitions, EPA's proposal modifies and adds to the list of water features that are excluded from regulation under the Clean Water Act. These include:

• Waste treatment systems, which would now be defined to include "all components of a waste treatment system designed to meet the requirements of the Clean Water Act, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either covey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge)."
• Prior converted cropland, which would be defined to mean "any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose, or having the effect, of making production of an agricultural product possible." Under the new proposal, EPA and the Corps would be required to recognize designations of prior converted cropland made by the Secretary of Agriculture.
• Ditches, which would be defined broadly to mean "a constructed or excavated channel used to convey water." In the preamble to its proposed rule, EPA explains that it "excludes ditches (including roadside ditches) that are constructed or excavated entirely in dry land," based in part on the view that such ditches are "not part of the naturally occurring tributary system and do not fall under the ordinary meaning of the term 'waters' within the scope of the Clean Water Act."
• Groundwater, which would be added as an exclusion to the definition of "waters of the United States." The term would be defined to include "groundwater drained through subsurface drainage systems." The preamble to the proposed rule clarifies that, although the agencies have never interpreted "waters of the United States" to include groundwater, the rule is intended to make clear that groundwater is not surface water and cannot be considered "navigable."

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If adopted, the new rule would provide welcome relief to the regulated community, which has lived through decades of uncertainty as various administrations have either expanded or restricted the scope of the Clean Water Act, and the Supreme Court has offered its own views on at least four occasions since 1985. Although Sackett and the new rule would pull EPA and the Corps out of the picture in most cases, the State of California will retain its own robust protections for wetlands and other "waters of the State." This is because California's State Water Resources Control Board, anticipating a federal rollback under the Clean Water Act, adopted its own comprehensive (and rigorous) regulations in 2019 for the permitting of discharges into wetlands and other "waters of the State." The State Water Board's "Procedures," as they are called, will continue to govern activities in California regardless of what happens at the Federal level.

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