United States: 'Waters Of The United States' What Next? Proposed 2019 Trump Administration WOTUS Rule

Last Updated: March 18 2019
Article by William T. Gorton III

BACKGROUND

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:

  1. Traditional navigable-in-fact waters;
  2. Tributaries to traditional navigable-in-fact waters;
  3. Ditches associated with (1) and (2) above, those that relocate a tributary, those in an adjacent wetland;
  4. 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";
  5. Impoundments of all of the above; and
  6. 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.

  1. Traditional navigable waters
    1. No change, except that the territorial seas are identified in the proposal as a type of traditional navigable water.
  2. Tributaries
    1. 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.
    2. Both the 2015 Rule and pre-2015 practice found some ephemeral streams jurisdictional.
  3. Ditches
    1. 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.
    2. 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.
  4. Lakes and Ponds
    1. Lakes and ponds were not a separate category in the 2015 Rule or pre-2015 practice.
    2. 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.
    3. 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.
  5. Impoundments
    1. Impoundments of jurisdictional waters would remain jurisdictional under the proposal, as they were under the 2015 Rule or pre-2015 practice.
  6. Adjacent Wetlands
    1. 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.
    2. 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.
  7. Interstate waters - eliminated
    1. No longer an independent category of jurisdictional waters under the proposal; jurisdictional if they satisfy the conditions of another category of jurisdictional waters.
    2. 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:

  1. Waters of water features not identified above;
  2. Groundwater, including groundwater drained through subsurface drainage systems;
  3. Ephemeral features and diffuse stormwater run-off including directional sheet run-off over upland;
  4. Ditches not described above;
  5. Prior converted cropland;
  6. Artificially irrigated areas including fields flooded for rice or cranberries;
  7. 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;
  8. Water-filled depressions created in upland incidental to mining or construction activity and pits excavated in upland for obtaining fill, sand or gravel;
  9. Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off;
  10. Wastewater recycling structures constructed in upland such as detention, retention and infiltration basins and ponds and groundwater recharge basins; and
  11. Waste treatment systems.

CONCLUSION

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.

Footnotes

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.

10 Proposed Revised Definition of WOTUS - Factsheets

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
William T. Gorton III
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions