February 18, 2020
EPA and Army Corps of Engineers Finalize Navigable Waters Protection Rule
Written by Chloe Marie – Research Specialist
On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finalized and released the final version of the Navigable Waters Protection Rule (later published in the Federal Register on Apr. 21, 2020), which modifies the prior definition of “Waters of the United States” contained in the Clean Water Rule promulgated during the Obama administration in June 2015. The promulgation of this Final Rule is consistent with an Executive Order issued on February 28, 2017, by President Trump directing the EPA and the Corps to initiate steps towards reviewing and revising the 2015 Clean Water Rule. A proposed rule was published in the Federal Register on February 14, 2019.
This article will provide an overview of the content of the Navigable Water Protection Rule.
Under this Final Rule, waters of the United States are divided into four categories: (1) Territorial Seas and Traditional Navigable Waters; (2) Tributaries; (3) Lakes and Ponds, and Impoundments of Jurisdictional Waters; and (4) Adjacent Wetlands.
- Territorial Seas and Traditional Navigable Waters
For this category, the agencies maintain the same definition of traditional navigable waters as the one contained in the 2015 Rule, which reads as follows “All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide,” 33 C.F.R. § 328.3(a)(1).
With regard to territorial seas, the agencies determined that they are explicitly and properly defined in section 502(8) of the Clean Water Act as follows: “the belt of the seas measured from the line of ordinary low water along that portion of the coast, which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.”
For reasons of practicability and legal clarity, however, the agencies chose to bring these two categories into a single category because “the jurisdictional status of other categories of waters relies on their surface water connection to either a traditional navigable water or the territorial seas.”
- Tributaries
According to the new rule, tributaries must be understood to be perennial or intermittent rivers and streams that contribute surface water flow to the territorial seas or traditional navigable waters in a typical year. To understand the definition of a tributary, the words “perennial,” “intermittent,” and “typical year” are paramount.
The agencies define “perennial” as “surface water flowing continuously year-round” while “intermittent” is defined as “surface water flowing continuously during certain times of the year and more than in direct response to precipitation.” The words “certain times of the year” must be understood as seasonal events that occur at a foreseeable time each year, such as snow melt in the spring.
“Typical year” is a key term as it helps better understand the nature of the water flow – whether it is perennial or intermittent for example – and refers to a year “when precipitation and other climatic variables are within the normal periodic range (e.g., seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.” In other words, a “typical year” is a year without any unexpected meteorological event that may impact the surface water flow, such as extreme drought or floods.
Interestingly, the agencies did not include “ephemeral” waters and related features in the definition of a tributary. “Ephemeral” waters are defined as “surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall.” According to the agencies, “[t]hese features lack the required perennial or intermittent flow to satisfy the ‘tributary’ definition and therefore are not jurisdictional.”
Another important aspect of the definition of a tributary is that it does not include ditches, except for “a ditch that either relocates a tributary, is constructed in a tributary, or is construed in an adjacent wetland as long as the ditch is perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year.”
- Lakes and Ponds, and Impoundments of Jurisdictional Waters
Under the 2015 Rule, lakes, ponds and impoundments were regulated separately; however now, they have been combined into a single category because “lakes, ponds, and impoundments function similarly in the landscape.” The Final Rule regulates any lake, pond, or impoundment provided that it contributes surface water flow to a traditional navigable water or territorial sea in a typical year or any lake, pond, or impoundment that has been flooded by another jurisdictional water.
- Adjacent Wetlands
The new rule defines adjacent wetlands as a water body abutting a jurisdictional water. A wetland that is flooded by a jurisdictional water in a typical year is also considered to be an adjacent wetland.
Interestingly, wetlands that are separated from jurisdictional waters because of an artificial barrier are not recognized as waters of the United States as long as there is no direct hydrologic surface connection to jurisdictional waters. In contrast, if there is a hydrological connection between the wetland and the jurisdictional water, then the wetland would be regulated as a water of the United States.
On the other hand, a wetland naturally separated from a jurisdictional water due to the presence of a natural berm, bank, dune, or any similar feature is characterized as a jurisdictional water because the agencies took the view that the existence of a natural barrier shows that there is a hydrological connection between the wetland and the jurisdictional water. The agencies mentioned as an example the creation of a natural river berm through “repeated flooding and sedimentation events when a river overtops its banks and deposits sediment between the river and a wetland.”
This final rule provides for twelve exclusions from the definition of “Waters of the United States,” including, and as stated in the final rule:
- 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;
- Waste treatment systems; and
- Interstate waters, including interstate wetlands.
Waste treatment systems and prior converted cropland are two of these exclusions that have been retained from the 2015 Rule. For the first time, however, the agencies provided definitions of what they represent in the interests of clarity.
The agencies define waste treatment systems as “lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge).”
Whether a prior converted cropland is excluded from the definition of waters of the United States is considered against two criteria: 1) if the cropland has been relinquished – in other words, if it has not been used for or in support of the business of agriculture for more than five years; and 2) if wetland conditions have returned. EPA and the Corps will be responsible to determine whether a cropland has been abandoned.
The Final Rule also clarifies the definition of “upland” as being “any land area that under normal circumstances does not satisfy all three wetland factors (i.e., hydrology, hydrophytic, vegetation, hydric soils) … and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water.”
Surprisingly, the new definition of waters of the United States does not include interstate waters. According to the agencies, one of the main reasons for this is that interstate waters and navigable waters are categories that are not simply interchangeable. Therefore, interstate waters with a surface water connection to territorial seas or traditional navigable waters will be regulated under the Clean Water Act; if not, they are otherwise be regulated by the states and/or Tribes.
References:
The Center for Agricultural and Shale Law is a partner of the National Agricultural Law Center (NALC) at the University of Arkansas System Division of Agriculture, which serves as the nation’s leading source of agricultural and food law research and information. This material is provided as part of that partnership and is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
