The Navigable Waters Protection Rule: WOTUS from another POTUS

On January 23, 2020, the U.S. Environmental Protection Agency (EPA), in collaboration with the U.S. Army Corps of Engineers (ACOE) finalized a “Navigable Waters Protection Rule” to codify interpretation and application of the federal Clean Water Act (CWA).

The rule is the most recent in a series of attempts by the agencies and the Obama and Trump administrations to clarify the extent of federal jurisdiction over the nation’s water resources. Dubbed the “Waters of the United States,” or WOTUS Rule, it comes after two generations of U.S. Supreme Court jurisprudence and administrative attempts to decipher and implement a constantly-evolving sense of the limits of federal authority over water quality.

In 2015, the Obama administration issued a Clean Water Rule which would have had the effect of expanding the application of the Act by including in the term “neighboring” any waters within the same floodplain as navigable waters, and providing for a case-specific analysis for certain jurisdictional determinations.

The 2015 rule was immediately challenged by more than 100 parties around the country, including states and agricultural groups, which argued that the scope touched internal farm ditches and other isolated waters which had traditionally been seen as outside the scope of federal jurisdiction. Several courts around the country stayed implementation of the rule pending their review.

Early in 2017, before many of the pending court cases had been resolved, President Trump issued an executive order calling for the review and revision of the definition of WOTUS. A “Step One” rule reverting from the Obama-era rule to the regulations as they existed before it was implemented, published in October of 2019. This new rule will replace the Step One Rule upon taking effect, sixty days after publication in the Federal Register.

According to the official EPA announcement of the “Step Two” WOTUS Rule:

“Four clear categories of waters are federally regulated:

• The territorial seas and traditional navigable waters;
• Perennial and intermittent tributaries to those waters;
• Certain lakes, ponds and impoundments; and
• Wetlands adjacent to jurisdictional waters.

The final rule also details 12 categories of exclusions, features that are not “waters of the United States,” such as features that only contain water in direct response to rainfall (e.g., ephemeral features); groundwater; many ditches; prior converted cropland; and waste treatment systems.

The final rule clarifies key elements related to the scope of federal Clean Water Act jurisdiction, including:

• Providing clarity and consistency by removing the proposed separate categories for jurisdictional ditches and impoundments.
• Refining the proposed definition of “typical year,” which provides important regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
• Defining “adjacent wetlands” as wetlands that are meaningfully connected to other jurisdictional waters, for example, by directly abutting or having regular surface water communication with jurisdictional waters.”

A key concern of agricultural interests, namely the perception that the Obama-era rule could bring farm ditches within the scope of the CWA, is explicitly addressed in Notice of the Step Two Rule:

“The agencies disagree with the inclusion of upland ditches as jurisdictional waters aside from ditches that relocate a tributary or that meet the conditions of paragraph (a)(1). Such ditches are not part of the naturally occurring tributary system and are not something the agencies consider to be within their authority to regulate under the CWA. Upland ditches (other than those ditches that relocate a tributary or that meet the conditions of paragraph (a)(1)) do not fall under the ordinary meaning of the term “waters” within the scope of the CWA. In general, upland ditches were not jurisdictional for decades under the agencies’ previous definitions of “waters of the United States,” and they are not jurisdictional under this final rule (with the exceptions noted above). The agencies considered identifying and excluding ditches based on the function or purpose of the ditch but concluded that such an approach could result in the regulation of ditches with ephemeral flow and the exclusion of ditches which are essentially relocated tributaries. Both outcomes would be contrary to the agencies’ interpretation of the scope of CWA jurisdiction described throughout this notice.”

Environmental groups have already committed to challenging the Step Two Rule, so its precise impact will likely be determined through judicial interpretation in the years to come. The Dean Mead Agribusiness Industry Team will continue to monitor developments relating to this rule and the Clean Water Act in general.

Dennis Corrick is a shareholder and member of Dean Mead’s Agribusiness Industry team practicing in the firm’s Treasure Coast office. He focuses in the areas of commercial real estate, zoning and land use, and general business law, and has extensive experience working with issues unique to agricultural businesses and properties. If you would like more information, please reach out to Dennis at dcorrick@www.deanmead.com.