By David M. Moore
The U.S. EPA and Army Corps of Engineers issued the long awaited proposed waters of the United States (WOTUS) rule on Feb. 14, 2019. Settling the WOTUS question is a major priority for the Trump administration. The Proposed Rule has sweeping implications and affects all promulgated Clean Water Act (CWA) regulatory provisions including EPA rules at 40 CFR Parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and 401 and Corps rules at 33 CFR Part 328. These rules address everything from spills, releases and reporting to permitting and enforcement, and affect the jurisdictional status of every water feature in the United States.
What is WOTUS?
The Proposed Rule keeps the major traditional water feature categories, but surprisingly adds “ditches” for the first time as a WOTUS where they might meet the traditional navigable waters test, or are constructed in a tributary or wetland (see discussion below). The rule identifies six water features within WOTUS jurisdiction (See, e.g., Proposed Rule at 33 C.F.R. 328.3(a):
- traditional navigable waters,
- tributaries that meet the traditional navigable waters test,
- ditches that meet the traditional navigable waters test or ditches constructed in a tributary or adjacent wetland
- lakes and ponds that meet the traditional navigable waters test or contribute perennial or intermittent flow to a traditional navigable water
- impoundments of any water otherwise designated, and
- ‘adjacent wetlands’ to any of the above five categories.
What is Different?
Compared to the ill-fated 2015 WOTUS Rule, the new Proposed Rule shifts the legal analysis from the complex ‘significant nexus’ test espoused by former Supreme Court Justice Kennedy in the 2006 Rapanos 4-1-4 plurality decision (547 U.S. 715 (2006)), to a brighter line test of adjacency or direct connection penned by former Justice Scalia and joined by justices Thomas, Alito and Chief Justice Roberts. The Scalia decision is best characterized as having greater fidelity to Constitutional limits on Federal authority (e.g. Commerce Clause), where the Kennedy decision gave greater deference and flexibility to federal agencies to determine what waters satisfied Constitutional limits.
Replacing the “significant nexus” test is, at least, with respect to wetlands, the “direct hydrologic surface connection” criteria, which was considered a valid test for WOTUS prior to the Rapanos decision in 2006.
Other Key Issues
The Proposed Rule contains 67 pages of explanatory preamble and rule and a litany of issues for policy makers, scientists, water supply managers, federal state and local agencies to consider. Among the issues are the revision of exclusions for waste management systems, inclusion of detention, retention and infiltration, and groundwater recharge.
EPA and the Corps may have unwittingly brought stormwater management systems, which frequently meet the definition of wetland, back into regulation as a WOTUS despite fairly recent hard-fought legal cases excluding these features. The proposal excludes “Stormwater control features excavated or constructed in upland to convey, treat, infiltrate or store stormwater run-off.” Many stormwater control features were constructed in wetlands prior to enactment of the CWA, and many stormwater control features have become wetlands under the Corps 1987 Manual and guidance since their construction. These features would invariably become WOTUS under the proposed rule.
Additionally, the definition of waste management systems has been narrowed from recent court decisions which would include stormwater management. EPA and the Corps have narrowed the waste management system exclusion which has been in CWA rules since the 1970s to only those detention, retention, and infiltration systems that are part of a “wastewater recycling structure constructed in upland.” Wastewater is decidedly not stormwater under EPA regulations, guidance, and court decisions. Unless the proposal is changed, or subsequent court decisions reinstate stormwater management system exceptions, the Proposed Rule would potentially bring a large number of detention, retention, and infiltration systems constructed for stormwater management into regulation as WOTUS.
Conclusion
The Proposed Rule establishes brighter legal and scientific lines for WOTUS determinations than the 2015 rule. This is important and a welcome fix. In some respects, the Proposed Rule returns jurisdiction to the settled rule of law utilized for thirty years of CWA permitting and enforcement. However, with the addition of ditches and limitation on stormwater management, many features will now become jurisdictional.
Given that the WOTUS definition triggers penalties of up to $ 52,500 per day and per violation, further consideration and refinement seems appropriate. WOTUS does not merely address how we manage environmental issues in the United States, but affects a litany of release reporting, response and cleanup, and permitting requirements with serious consequences, including incarceration. WOTUS can be used and is used to stop projects unwanted for public policy, political, or parochial reasons under the citizen suit provisions in CWA.
This year, Water Finance & Management is looking for environmental law and policy issues to be discussed in this new Legal Corner column. We are looking to cover legal issues that impact both drinking and clean water authorities, such as financing, debt, taxes and fees, water rights, etc.
David M. Moore, Esq.
Partner | Earth & Water Law Group, LLC
Dave Moore is a partner at Earth & Water Law Group, LLC, was a former EPA attorney and worked in EPA offices in Atlanta, Washington D.C and New York. He is also an adjunct professor at Emory School of Law where he has taught on the Clean Water Act and directed environmental litigation clinical work.
