On December 11, 2018, the United States Environmental Protection Agency and the Department of the Army, the two agencies primarily responsible for regulating waters under the Clean Water Act, issued a pre-publication version of its proposed rule revising the definition of “waters of the United States” (aka “WOTUS”) under the federal Clean Water Act.

If finalized, the new rule would change the nature and scope of permits and approvals required for many projects, such as developments or infrastructure projects, that involve potential filling of wetlands or other waters.

This proposal is the second step in the EPA’s efforts to modify the WOTUS definition. The first step was a proposed rule repealing the Obama-era 2015 rule defining WOTUS.

The 2015 Rule

The 2015 Rule proposed what the Obama administration characterized as an easier, bright-line method to establish whether a water was subject to Clean Water Act jurisdiction. A number of states, however, disagreed and took the position in litigation that the rule, which included a broad list of waters in the definition of WOTUS, exceeded the EPA and Army Corps of Engineers’ regulatory jurisdiction under the Clean Water Act. An injunction against the rule was issued by the federal District Court in North Dakota, and a nationwide stay was issued by the federal Sixth Circuit Court of Appeals. Due to a jurisdictional ruling by the Supreme Court, however, the status of that national stay was called into question.

Proposed Repeal of the 2015 Rule and Addition of an Effective Date for the 2015 Rule

In July, 2017, the EPA and the Army proposed to repeal the 2015 rule.

In January, 2018, in the wake of the Supreme Court’s ruling finding that the Courts of Appeals lacked jurisdiction to review the rule, and in order to address confusion caused by litigation rulings affecting some, but not all, states, the EPA and the Army finalized a new rule delaying the implementation of the 2015 rule until 2020.

Meanwhile, the proposed repeal rule has not yet been finalized.

Proposed Revised Definition

The proposed definition largely follows Justice Scalia’s WOTUS definition as set forth in the 2006 Rapanos v. United States decision. According to the EPA, WOTUS would be limited to the following six categories:

  • Traditional navigable waters (mostly large rivers and lakes, tidal waters and the territorial seas and tidally-influenced waterbodies, including wetlands) that are used in interstate commerce;
  • Tributaries to traditional navigable waters;
  • Certain ditches that are traditional navigable waters (such as the Erie canal), are subject to the tides, or were constructed in a tributary or were built in adjacent wetlands;
  • Certain lakes and ponds, including those that are traditional navigable waters, lakes and ponds that contribute flow to a traditional navigable water and those that are flooded by a WOTUS in a typical year;
  • Impoundments of a WOTUS, and
  • Adjacent wetlands, meaning those that physically touch other jurisdictional waters or have a surface water connection to a WOTUS in a typical year.

Certain types of waters would be explicitly excluded from the definition of WOTUS:

  • Ephemeral features, meaning those that flow only when it rains;
  • Groundwater;
  • Most farm and roadside ditches;
  • Prior converted cropland;
  • Stormwater control features in upland;
  • Wastewater recycling structures in upland, and
  • Wastewater treatment systems.

Effect of the Proposed Definition

While the proposed revision would likely lead to a significant reduction of the number of waters and wetlands subject to federal regulation across the nation, the on-the-ground effect on overall wetlands regulation in Minnesota will be less significant due to Minnesota’s robust regulation of wetlands under Minnesota’s Wetlands Conservation Act. The effect of the revised definition on activities affecting wetlands is likely to have greater regulatory impact in states that engage in less direct regulation of activities impacting wetlands. Also, some states may, in response to a reduced level of federal oversight, enact additional regulations governing impacts to public waters.

That said, the revised definition will affect the nature and scope of permits needed for some projects. In some cases, the only federal permit required for a project is a wetlands permit under section 404 of the Clean Water Act. If the wetland in question is no longer subject to federal regulation, however, a host of federal requirements that might be triggered by the need to get that federal permit might go away, such as compliance with the federal National Environmental Policy Act, the federal Endangered Species Act, and obligations under Section 106 of the federal National Historic Preservation Act. The need for a water quality certification by the state environmental protection agency (in Minnesota, the Minnesota Pollution Control Agency) under section 401 of the Clean Water Act also goes away.

Overall, while repealing the 2015 Rule and adopting the proposed rule based on Justice Scalia’s reasoning in Rapanos will reduce obligations under federal regulations for many projects, there may be added administrative costs to monitor and maintain compliance with varying state regulations.

Status of the Proposed Rule Revising the WOTUS Definition

Upon publication of the proposed rule in the Federal Register, the rule will be subject to a 60-day comment period. The EPA had also planned to host a webinar and a public meeting on the rule in January. As a result of the current government shutdown, however, the publication of the rule in the Federal Register, as well as the planned webinar and public meeting, have been postponed. It is anticipated that this proposal will move forward once the government reopens.

January 14, 2019