On January 24, 2020, the Trump Administration’s Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued their long awaited “Waters of the United States” rule defining the jurisdictional reach of the federal government under the Clean Water Act. It should come as no surprise that the rule scales back the enforcement and regulatory reach of the federal government by attempting to clearly demarcate what bodies of water are subject to federal regulation and what bodies of water are excluded, under the guise of “returning to Congress’ original intent,” the limits of Congressional power over “interstate commerce,” and the concept of “cooperative federalism.”
As though expecting a torrent of litigation, the agencies devote extensive text towards analyzing 150 years of Supreme Court jurisprudence on “navigability.” The rule goes to great effort to explain the difference between the concept of “navigable waters” and the “nation’s waters,” emphasizing that only the former qualify for federal regulation and enforcement, while the latter (including groundwater) are left for exclusive regulation by states and tribes. The rule also synthesizes 50 years of messy Clean Water Act jurisprudence, including a series of U.S. Supreme Court cases attempting to devise “clear” tests to allow regulators to determine “where water ends and land begins.” Concluding that the case law has too left much to the eye of the regulatory beholder and has thus created Constitutional due process infirmities, the rule sets out to paint bright lines to promote “regulatory certainty and to provide fair and predictable notice of the limits of federal jurisdiction.”
The rule provides four categories of waters that are Waters of the United States and, as a result, subject to regulation under the Clean Water Act.
The rule focuses on relatively permanent flowing or standing waters that are traditional navigable waters or have a surface water connection to a traditional navigable water. The rule also expressly lists twelve categories of waters that are not Waters of the United States, including groundwater, ephemeral streams that only flow as a result of precipitation events, artificial lakes and ponds, and certain types of ditches.
By limiting the federal jurisdictional reach, the rule sets out to scale back EPA’s National Pollutant Discharge Elimination System (“NPDES”) permitting program and oil spill programs, and the corresponding extent of the Corps’ authority over wetlands dredging and filling activities. By reducing the scope of what is federally regulated, the rule will have a corresponding limit on a state’s authority to condition a Corps permit under Clean Water Act section 401 or deny issuance of a 401 certification altogether. This bright-line rule should provide more regulatory certainty, reduce the need for case-by-case, stream-by-stream analysis, and eliminate the messy, quasi-scientific, overly complicated and difficult to discern tests created by the Supreme Court.
For federally-run programs, the change will take effect sixty days after publication of the rule in the Federal Register. The new rule does not, however, undermine the existing permitting and regulatory system currently in place. Permits and 401 Water Quality Certifications issued under the prior rules will continue as is unless the permitting agency chooses to revisit them. The new rule also does not invalidate Approved Jurisdictional Determinations and Preliminary Jurisdictional Determinations issued by the Corps before this rule, but persons holding either of these determinations can request a new determination under the new rule.
For programs that have been delegated to states and tribes, like NPDES permitting and 401 certifications, the new definition will take effect where it has been incorporated into their programs. Some states, however, have established permitting programs that encompass more than just Waters of the United States. The new rule would not limit that state-authorized portion of their programs. For example, the Washington Department of Ecology regulates groundwater under its combined permitting program for NPDES and state water quality. The new rule would not eliminate groundwater from Washington’s permitting program.
As much as the rule attempts to create regulatory certainty, its controversial nature will ensure years of continued litigation over the limits of federal authority under the Clean Water Act – litigation that is destined to once again be resolved by the U.S. Supreme Court.