EPA/US Army Corps of Engineers Revises Definition of Waters of the United States

Written February 11, 2020

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In what has been an important agenda item on President Trumps regulatory streamlining effort, EPA/Corps issued their final rule revising the definition of the “Waters of the United States,”. The January 2020 rule establishes which bodies of water that are subject to federal jurisdiction under the Clean Water Act. The regulation of Waters of the United States (WOTUS) has long been the subject of debate, controversy, litigation, and inconsistent application. The Obama Administration’s rule in 2015 significantly expanded the scope of WOTUS and it never went into effect nationwide due to court action stopping it. The new revised definition of WOTUS, titled the “Navigable Waters Protection Rule,” implements a categorical approach to Clean Water Act jurisdiction.

The rule outlines four “clear” categories of waters that are considered WOTUS and, therefore, jurisdictional under the CWA:
• Territorial seas and traditional navigable waters
• Tributaries of such waters
• Certain lakes, ponds, and impoundments of jurisdictional waters
• Wetlands adjacent to other jurisdictional waters (other than waters that are themselves wetlands).

Under this part of the rule, the EPA/Corps eliminated the “significant nexus test” that was included in the 2015 rule, which relied heavily on the significant nexus test to ensure that the WOTUS definition encompassed many non-navigable waters that impact WOTUS. The EPA/Corps now emphasize that the significant nexus test was necessary only in the absence of clear regulations, which the new rule provides.

The new rule now excludes 12 waters/features that are not WOTUS and, therefore, not CWA jurisdictional:
• Water bodies that are not included in the four WOTUS categories listed above
• Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands
• Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools
• Diffuse storm water run-off and directional sheet flow over upland
• Many farm and roadside ditches
• Prior converted cropland
• Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease
• Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters
• Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity
• Storm water control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store storm water runoff
• Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters
• Waste treatment systems have been excluded from the definition of WOTUS since 1979 and will continue to be excluded under the final rule.

It is anticipated that the new rule will be subject to numerous legal challenges, as many non-governmental organizations have stated they will be filing a lawsuit to overturn the regulation.

For more information or to ask any questions, email the Government Affairs Department at govtaffairs@sgia.org.