Lay of the Land
This morning, the White House announced adoption of its long-awaited redefinition of waters protected by the federal Clean Water Act. This new rule will significantly restrict the role of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency in regulating discharges of fill or other pollutants into wetlands and other waters.
In announcing its final rule, the White House celebrated its deregulatory action as both furthering economic development and establishing a proper balance between federal authority and the States’ primary role in the regulation of land and water use. The administration’s action will be immediately litigated by environmental and other groups who view it as unjustified under the Clean Water Act. These groups undoubtedly will request the federal courts to stay the new rule until such time as its legality can be adjudicated.
According to White House staff, the final rule defines “waters of the United States” based upon a “unifying legal theory” that asserts jurisdiction based over features that have an actual surface water connection with traditional navigable waters and territorial seas.
The new definition of waters of the United States – or “WOTUS” – was long-expected. In fact, the President signaled his intention to redefine WOTUS within a month after his inauguration. The definition is based on a plurality opinion written by the late Justice Antonin Scalia in the Supreme Court’ Rapanos v. United States decision, and it rejects a more expansive WOTUS definition created by Justice Anthony Kennedy in the same decision. The Obama administration had promulgated a far-reaching WOTUS definition based on Kennedy’s “significant nexus” concept. That rule was revoked by the Trump administration last year, and it has now been replaced by today’s far narrower definition.
Under the new rule, the Corps of Engineers and EPA will assert jurisdiction over four basic categories of waters:
- Traditional navigable waters and territorial seas
- Tributaries that have perennial or intermittent flow in a typical year
- Lakes, ponds and impoundments of traditional navigable waters
- Wetlands that abut jurisdictional waters or are separated only by a natural berm or artificial barrier that allows a regular or continuous surface water connection.
The final rule excludes from the agencies’ jurisdiction any water features not described above. It also contains specific exclusions for:
- Groundwater
- Ephemeral features that flow only in response to precipitation
- Diffuse stormwater and sheet flow
- Most ditches that are not constructed in jurisdictional wetlands
- Prior converted cropland
- Artificially irrigated areas that would revert to upland if irrigation ceases
- Artificial lakes and ponds, and construction and mining pits, constructed in upland or non-jurisdictional waters
- Stormwater control features constructed in upland to convey, treat, infiltrate or store stormwater runoff
- Groundwater, water reuse, wastewater recycling structures constructed in upland or non-jurisdictional waters
- Waste treatment systems
In California, this action will shift primary permitting authority over many waters and wetlands to the State Water Resources Control Board (State Water Board). Last year, the State Water Board – anticipating today’s action by the Trump administration — adopted a far-reaching program to regulate discharges to wetlands and other waters of the State. This new program, which becomes effective in May, covers all surface waters and groundwaters in the State of California, thus blunting the deregulatory effect of today’s federal action.
If you have any questions about the final rule, or the State Water Board’s new stopgap program, please let us know. Cox Castle was heavily involved in negotiations over the provisions of the State’s new program.