The latest iteration to replace the 2008 Rapanos Guidance and 2015 WOTUS Rule with a satisfactory definition of Waters of the United States was formally presented to the country on February 14, 2019 when the agencies published the Trump Administration's Proposed Rule: "Revised Definition of Water of the United States" ("Proposed Rule").1 In the second step of the process as described in the President's February 28, 2017 Executive Order 13778,2 the agencies intend to "increase predictability and consistency by increasing clarity as to the scope of "Waters of the United States." Recall the President's stated objective to interpret the term "navigable waters" consistent with Justice Scalia's opinion in Rapanos,3 which does not analyze the complexity of hydrologic or ecologic systems as Justice Kennedy's "significant nexus" test but rather seeks a more bright-line demarcation of where federal jurisdiction over property begins and ends by identifying "relatively permanent standing or continuous flowing bodies of water."4
The Proposed Rule swings the definition's pendulum far from the most detailed type of technical and scientific criteria recognizing many of these complex ecosystems, hence the "significant nexus" test described by Justice Kennedy in Rapanos, which has been the standard used by many federal courts, will be supplanted under the Proposed Rule. The Administration's overall goal of the Proposed Rule is basically to simplify it.
The Proposed Rule begins with the history of federal authority under the Commerce Clause addressing the basic term "navigable"5 and originally being self-explanatory as "navigable in fact waters" as customarily used as highways in commerce. Describing the expansion of the definition over time as uses and disturbances of water courses moved upstream, the administration states clearly, "There must necessarily be a limit to that authority and to what water is subject of federal jurisdiction."6
The agencies suggest that their proposal would eliminate the time-consuming and uncertain process of determining whether a "significant nexus" exists between a water and a downstream traditional navigable water as directed under the agencies' 2008 Rapanos Guidance or whether a water has a significant nexus to a traditional navigable water, interstate water or territorial sea as codified in the agencies' 2015 Rule defining "waters of the United States."
A short synopsis of the significant changes to defining regulated waters follows. In many instances the agencies have, again, attempted to parse the various holdings of the Supreme Court7 in describing the boundaries and relationships of certain water bodies and hydrologic features. In other categories, the agencies have simply proposed excluding certain hydrologic-formed features from federal jurisdiction.
Although the Proposed Rule does draw some bright lines between what are and what are not jurisdictional waters, those more complicated ecological systems that Justice Kennedy found were subject to the "significant nexus" test can still be complicated notwithstanding the new proposal. Identifying jurisdictional waters will first require sifting through the newly-proposed definitions8 of the various categories and other terms of art in the field of WOTUS jurisdiction.9 Perhaps the brightest line drawn in the Proposed Rule is the express delineation of what waters are not regulated waters.
PROPOSED RULE CATEGORIES/CHANGES
Under the Proposed Rule, the categories and definitions of Waters of the United States include:
- Traditional navigable-in-fact waters;
- Tributaries to traditional navigable-in-fact waters;
- Ditches associated with (1) and (2) above, those that relocate a tributary, those in an adjacent wetland;
- Lakes and ponds that are navigable and those that contribute perennial or intermittent flow to navigable-in-fact wasters directly or indirectly in a "typical year";
- Impoundments of all of the above; and
- Adjacent wetlands to waters identify above.
A summary of the basic changes as adapted from the agencies' Fact Sheets10 compared to the 2015 Rule and pre-2015 practice follows.
- Traditional navigable waters
- No change, except that the territorial seas are identified in the proposal as a type of traditional navigable water.
- Rivers and streams that contribute perennial or intermittent flow to downstream traditional navigable waters in typical year are jurisdictional under the proposal; no ephemeral features are considered jurisdictional under the proposal.
- Both the 2015 Rule and pre-2015 practice found some ephemeral streams jurisdictional.
- Fewer ditches will be considered jurisdictional under the proposal, mostly because no ditches constructed in upland and no ditches with ephemeral flow would be considered jurisdictional.
- Both the 2015 Rule and pre-2015 practice found ditches jurisdictional where they were a tributary, including ditches constructed in upland with perennial or intermittent flow.
- Lakes and Ponds
- Lakes and ponds were not a separate category in the 2015 Rule or pre-2015 practice.
- This proposal more closely adheres to the pre-2015 practice of regulating lakes and ponds as traditional navigable waters or as part of the tributary network of traditional navigable waters, with added clarity to make implementation more straightforward and for consistency.
- Under this proposed definition, fewer lakes and ponds may be jurisdictional than under the 2015 Rule because non-navigable, isolated lakes and ponds were considered adjacent waters together with isolated wetlands under the expanded definition of "neighboring" in the 2015 Rule.
- Impoundments of jurisdictional waters would remain jurisdictional under the proposal, as they were under the 2015 Rule or pre-2015 practice.
- Adjacent Wetlands
- Under the agencies' proposal there are more limited circumstances where wetlands would be considered adjacent relative to both the 2015 Rule and pre-2015 practice.
- Under the 2015 Rule and pre-2015 practice wetlands behind a berm or dike were considered adjacent. Under the agencies' new proposal wetlands must either abut jurisdictional waters or have a direct hydrological surface connection to jurisdictional waters in a typical year to be jurisdictional themselves; wetlands physically separated from jurisdictional waters by a berm, dike, or other barrier are not adjacent if they lack a direct hydrologic surface connection to a jurisdictional water in a typical year.
- Interstate waters - eliminated
- No longer an independent category of jurisdictional waters under the proposal; jurisdictional if they satisfy the conditions of another category of jurisdictional waters.
- Independent category of jurisdiction under 2015 Rule and pre-2015 practice.
PROPOSED RULE: EXCLUDED HYDROLOGIC FEATURES
Of note, the following are expressly excluded from Waters of the United States classification:
- Waters of water features not identified above;
- Groundwater, including groundwater drained through subsurface drainage systems;
- Ephemeral features and diffuse stormwater run-off including directional sheet run-off over upland;
- Ditches not described above;
- Prior converted cropland;
- Artificially irrigated areas including fields flooded for rice or cranberries;
- Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds and log cleaning ponds) not identified in category No. 4 above;
- Water-filled depressions created in upland incidental to mining or construction activity and pits excavated in upland for obtaining fill, sand or gravel;
- Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
- Wastewater recycling structures constructed in upland such as detention, retention and infiltration basins and ponds and groundwater recharge basins; and
- Waste treatment systems.
Although the agencies provide significant analysis and rationale for the Proposed Rule, like all prior attempts to bring certainty and stability to this aspect of environmental law, it is assured that the proposed revisions to an important regulatory program, notwithstanding the goal to simplify how it is applied, will be the subject of continued legal challenges, ultimately winding its way back to the Supreme Court. In the meantime, the comment period for the latest Proposed Rule describing what are Waters of the United States is open until April 15, 2019.
1 84 Fed. Reg. 4154.
2 Exec. Order No. 13778 on Restoring the Rule of Law, Federalism and Economic Growth by Reviewing "Waters of the United States" Rule, 82 Fed. Reg. 12497, March 7, 2017.
3 See infra fr 88.
4 531 U.S. 739,742.
5 The Daniel Bell, 77 U.S. (10 Wall.) 557,563 (1871).
6 84 Fed. Reg. 4165.
7 84 Fed. Reg. 4164.
8 See 84 Fed. Reg. 4204-4205.
9 Perhaps unfortunately, the legal definitions do not always comport with actual scientific definitions for certain hydrologic principles.
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