On April 21, 2020, the Environmental Protection Agency and the U.S. Army Corps of Engineers (together, the “Agencies”) published a final rule in the Federal Register redefining the term “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”).  The Agencies previously issued pre-publication notice of the final rule on January 23, 2020.  The publication of the new rule is the second step in a two-part rulemaking that began with the issuance of Executive Order 13,778, titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States Rule’” (the “Executive Order”).  The Executive Order directed the Agencies to “review” the 2015 Clean Water Rule (the “2015 Rule”), and “consider interpreting the term ‘navigable waters’ . . . consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

The Agencies finalized the first step of this process by repealing the 2015 Rule in an interim ruling published in the Federal Register on October 22, 2019 (the “2019 Rule”).  The repeal, which became effective on December 23, 2019, has since been challenged in several district courts around the country, including in: the Southern District of New York (No. 19-11673); the Northern District of New York (No. 19-cv-01498); the District of South Carolina (19-cv-3006); the District of New Mexico (No. 1:19-cv-988); the District of Minnesota (No. 0:19-cv-2193); and the Western District of Washington (No. 2:19-cv-569).

The newly minted Navigable Waters Protection Rule replaces both the 2015 Rule and the 2019 Rule by redefining (and narrowing) the Agencies’ definition of WOTUS, which sets the outer bounds of the Agencies’ jurisdiction under the CWA.  Under the Navigable Waters Protection Rule, WOTUS includes four categories:

1. The territorial seas and traditional navigable waters;
2. tributaries of such waters;
3. certain lakes, ponds, and impoundments of jurisdictional waters; and
4. wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands).

All other waters or features are excluded from the definition of WOTUS and so would fall outside the Agencies’ regulatory jurisdiction.  In addition to this general exclusion, the Navigable Waters Protection Rule specifically excludes the following categories from the definition of WOTUS:

• Groundwater, including groundwater drained through subsurface drainage systems;
• Ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools;
• Diffuse stormwater runoff and directional sheet flow over upland;
• Ditches that are not traditional;
• Navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
• Prior converted cropland;
• Artificially irrigated areas that would revert to upland if artificial irrigation ceases;
• Artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
• Water-filled depressions constructed or excavated 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;
• Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
• Groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
• Waste treatment systems.

The new rule also offers definitions for several previously undefined terms.  For instance, the term “ephemeral” is now defined to mean “surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall)”; the term “perennial” is now defined to mean “surface water flowing continuously year-round”; the term “intermittent” is defined to mean “surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts); and the term “prior converted cropland” is defined to mean “any area that, prior to December 23, 1985, was drained or otherwise manipulated for the purpose.”

The new rule narrows the Agencies’ jurisdiction in several critical respects, including:

• Ephemeral streams that flow only in direct response to precipitation are specifically excluded from the Agencies’ jurisdiction.
• Wetlands are excluded from CWA jurisdiction unless they directly abut a jurisdictional water; are separated from a jurisdictional water by a natural berm, bank or dune; or have a direct hydrological surface connection to a jurisdictional water.
• The rule abandons the “significant nexus” test outlined by Justice Kennedy’s concurrence in Rapanos and adopted by the Agencies in the 2015 Rule.

The Agencies state that this narrower approach is required by both the text of the CWA and a need to avoid exceeding Congress’s authority under the Commerce Clause.  The Agencies acknowledge that their interpretation of WOTUS departs from the 2015 Rule, and they justify that change by citing federal agencies’ traditional authority to reinterpret ambiguous statutory text.  This justification, along with the Agencies’ reliance on Justice Scalia’s plurality opinion in Rapanos, will likely be the focus of upcoming litigation challenging the new rule, which will take effect on June 22, 2020.

Although the Agencies state that the new rule will “provide[] clarity and predictability,” the regulated community should expect to see considerable uncertainty, at least in the short term.  Because lawsuits challenging the new rule must be filed in federal district courts, litigation against the 2015 Rule led to a patchwork of inconsistent decisions and regional variation; before its revocation in October 2019, the 2015 Rule was effective in 22 states (plus the District of Columbia and U.S. Territories) and enjoined in 28 states.  (Our analysis of litigation involving the 2015 Rule can be found here.)  A federal district court could conceivably issue a nationwide injunction; however, the Supreme Court has recently approached nationwide injunctions with skepticism, and district courts may be reluctant to wade into that dispute.

As we detailed in a previous post, the Agencies are currently making jurisdictional determinations based on the pre-2015 Rule regulatory regime and the administrative guidance issued in the wake of Rapanos.  That will remain the case until the new rule goes into effect on June 22, assuming no court enjoins the new rule prior to that date.  Prior jurisdictional determinations made under older regulatory rules will remain valid after the new rule goes into effect, but the holder of a valid jurisdictional ruling or a preliminary jurisdictional ruling may request a reassessment based on the new rule.

Critically, although the new rule will narrow the Agencies’ jurisdiction under the CWA, it specifically acknowledges that a state may exercise jurisdiction over a wider range of waters or impose more stringent regulations under state law.  Thus, the new rule does not affect certain state laws, such as the New York Tidal Wetlands Act, the Freshwater Wetlands Act, and their implementing regulations.