Florida Bar Journal

Waters of the United States: A New Era for Federal Wetland Jurisdiction

For more than 45 years, all three branches of government have struggled with how to interpret the meaning of “waters of the United States” (WOTUS) as envisioned in the Clean Water Act (CWA).^[1] On February 14, 2019, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (corps) (collectively referred to as “the agencies”) officially released the Trump Administration’s proposed new WOTUS rule (the 2019 proposed rule) defining which wetlands and waters across the U.S. are subject to federal regulation under the CWA.^[2] Overall, the 2019 proposed rule definition and approach more narrowly defines the scope of waters subject to regulation under the CWA as compared to the definition in the heavily challenged 2015 rule.

The CWA prohibits the unpermitted discharge of pollutants, including soil or fill material in waterbodies, wetlands, and even some normally dry lands. Accordingly, as the definition of WOTUS expands, so does the federal government’s jurisdiction over construction and other activities affecting these areas. The definition of waters of the U.S. under §404 of the CWA determines which wetlands and waterbodies are subject to federal regulation by the EPA and the corps. States have their own authorities to regulate water within their borders, regardless of whether the water is WOTUS.

In the early 2000s, U.S. Supreme Court decisions, and subsequent interpretations, created confusion over the definition of waters of the U.S. and the federal government’s authority to regulate small waterbodies (e.g., streams, tributaries, and other sources) and wetlands. One of the purported goals of the new WOTUS definition is to clarify prior U.S. Supreme Court cases addressing the scope of federal wetlands jurisdiction. Two Supreme Court rulings, issued in 2001 and 2006 respectively, interpreted the scope of the CWA more narrowly than the agencies had done previously in regulations and guidance.^[3] However, the rulings also created uncertainty about the intended scope of waters that are protected by the CWA.

Executive Order 13778

In February 2017, President Trump issued Executive Order 13778 entitled, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”^[4] The order directed the agencies to consider revising or rescinding the definition of waters of the U.S. and consider interpreting navigable waters in a manner that is consistent with the late Justice Scalia’s interpretation in Rapanos v. United States, 547 U.S. 715 (2006), which limited the CWA’s jurisdiction to only relatively permanent waters and “wetlands with a continuous surface connection” to a relatively permanent water.

The agencies are implementing the executive order in two steps. Step one repeals the 2015 rule and recodifies the regulatory definition of WOTUS as it existed prior to 2015 (step-one repeal rule).^[5] The Step One Repeal Rule became effective on December 23, 2019.^[6] Until a new rule is adopted, the pre-2015 rules will remain in place. Step two revises the definition of WOTUS and sets forth rules that are consistent with the executive order (2019 proposed rule).^[7] The 2019 proposed rule is explained later in this article following a brief history to put it in context.

History and Caselaw

To understand federal wetlands regulation and its evolution, it is essential to understand the Rapanos case because it sets out several approaches to determining what “waters of the United States” are. Since the opinion was issued in 2006, the agencies and other courts have used the rationales explained in this case in developing their own interpretations of WOTUS. The four-justice plurality opinion, authored by Justice Scalia, held:

In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,]. .. oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of “the waters of the United States” is thus not “based on a permissible construction of the statute….”^[8]

[O]nly those wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands, are “adjacent to” such waters and covered by the [a]ct.^[9]

Justice Kennedy’s concurring opinion added another test to define WOTUS, following the rationale in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), to consider whether the specific wetlands possess a “significant nexus” to waters that are navigable in fact or could be made so.^[10] Justice Kennedy opined that wetlands possess a significant nexus, “and thus come within the statutory phrase ‘navigable waters,’” when they “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”^[11] Finally, Justice Stevens’ dissenting opinion argued that the corps should be given deference to interpret their regulations to include wetlands adjacent to — meaning “bordering, contiguous, or neighboring.”^[12]

The 2015 Rule and Legal Challenges

On June 29, 2015, the agencies under the Obama Administration finalized the 2015 WOTUS rule and redefined the scope of waters protected under the CWA (2015 rule).^[13] The 2015 rule retained traditional navigable waters, interstate waters, and the territorial seas as jurisdictional by rule, as well as impoundments of such jurisdictional waters. The 2015 rule added tributaries and adjacent waters as jurisdictional by rule, and waters with a “significant nexus” would be determined on a case-specific basis. The 2015 rule provided little guidance, and regulators would be required to make “a case-specific showing of their significant nexus to traditionally covered waters” whenever there is any question.^[14]

Following publication of the 2015 rule, several states and environmental and industry groups filed challenges in multiple federal district and appellate courts. All of the challenges have taken some time to wind through the process. The most recent case is Georgia v. Wheeler, 102 WL 294922, U.S. District Court, S.D. Georgia, Brunswick Division No. 2:15-cv-0079, which relies heavily on the ruling in the Rapanos case and provides a good summary of the procedural and substantive rulings on WOTUS.^[15] The ruling remands the 2015 rule back to the agencies and keeps the injunction against its application in place in the 11 states that filed the challenge, including Florida. In that case, the court explained that, “The WOTUS Rule’s definition of ‘waters of the United States’ fails to comply with Justice Kennedy’s significant-nexus test defining the reach of the [a]gencies’ authority under the CWA, and it substantially interferes with an area of traditional state authority without a clear indication from Congress allowing such interference in the CWA.”^[16] This was the second case this year to invalidate the 2015 rule.^[17] Before the step-one repeal rule went into effect in December 2019, the 2015 rule was subject to preliminary injunctions in 28 states and was in effect in the remaining 22 states and the District of Columbia.

The 2019 Proposed Rule

The agencies published the step two (revised) rule on February 14, 2019 (the 2019 proposed rule).^[18] The 2019 proposed rule limits the definition of waters of the U.S. to waters that are physically and meaningfully connected to traditional navigable waters. The preamble of the rule notes that the agencies propose to retain the definition of wetland to mean “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” The presence or boundaries of wetlands will be determined based upon an area that meets all three of the definition’s criteria (i.e., hydrology, hydrophytic vegetation, and hydric soils) under normal circumstances.

Another key feature of the proposed 2019 rule is that it includes “adjacent wetlands” as jurisdictional and defines them as “wetlands that abut or have a direct hydrological surface connection to a water [under federal jurisdiction] in a typical year.” The proposed rule considers the hydrological surface connection to jurisdictional waters. It also states that features that were once wetlands but have been “naturally transformed or lawfully converted to upland” will be considered upland, and therefore, not jurisdictional. Once finalized, the new rule will apply nationwide.

Specifically, the 2019 proposed rule outlines the following six categories considered “waters of the United States”:

1) Traditional Navigable Waters (TNWs): Large rivers and lakes, tidal waters, and territorial seas used in interstate or foreign commerce. This includes the Atlantic Ocean, Mississippi River, the Great Lakes, and tidally influenced waterbodies including wetlands along coastlines.

2) Tributaries: Rivers and streams that flow into TNWs. Tributaries must be perennial or intermittent and flow more often than just when it rains. Ephemeral features are not tributaries as they were under the 2015 rule and pre-2015 rule.

3) Certain Ditches: A ditch is an “artificial channel used to convey water.” Ditches are jurisdictional if they were traditionally a navigable water or are subject to tidal ebb and flow. Ditches are also jurisdictional where they satisfy conditions of the proposed tributary definition and either were constructed in a tributary or were built in adjacent wetlands. Ditches constructed in uplands and with ephemeral flow are no longer jurisdictional as they were under the 2015 rule and pre-2015 rule.

4) Certain Lakes and Ponds (new category): Lakes and ponds are jurisdictional when they are traditionally navigable. These waters are jurisdictional only when they contribute perennial or intermittent flow to a TNW either directly or via another water of the U.S. or through other non-jurisdictional surface waters so long as the waters convey perennial or intermittent flow. Under this definition, fewer lakes and ponds are regulated than under the 2015 rule, which considered non-navigable, isolated lakes and ponds adjacent waters together with isolated wetlands because of the expanded definition of “neighboring.”

5) Impoundments of U.S. waters will remain jurisdictional, as they were under the 2015 rule or pre-2015 practice.

6) Adjacent Wetlands: Wetlands that physically touch other jurisdictional waters in a typical year. Under this definition, fewer wetlands are regulated than under the 2015 rule and pre-2015 rule because wetlands behind a berm or dike are no longer considered adjacent.

Importantly, the 2019 proposed rule eliminates the significant nexus test and includes the following exemptions: 1) groundwater, including groundwater drained through subsurface drainage systems; 2) certain ditches; 3) prior converted cropland; 4)artificially irrigated areas that would revert to upland if artificial irrigation ceases; 5) certain artificial lakes and ponds constructed in upland; 6) water-filled depressions created in upland incidental to mining or construction activity; 7) stormwater control features in upland to convey, treat, infiltrate, or store stormwater runoff; 8) wastewater recycling structures constructed in upland; 9) waste treatment systems.

What’s Next?

Even though the 2015 rule was repealed in December 2019, it has not been in effect in Florida since June 2018 when the court in Georgia v. Wheeler, 102 WL 294922, U.S. District Court, S.D. Georgia, Brunswick Division No. 2:15-cv-0079, enjoined it.^[19] Therefore, Florida will not see any practical impact from the step-one repeal rule that occurred in December 2019.

With regard to step two, the public comment period for the 2019 proposed WOTUS rule ended on April 15, 2019. In June 2019, the Senate Committee on Environment and Public Works, held its first hearing on WOTUS since the rule was published. Other congressional committees may follow suit. Once the 2019 proposed rule is finalized, it will likely face numerous lawsuits from opponents.

Although the agencies provided significant analysis and rationale for the 2019 proposed rule, like all prior attempts to bring certainty and stability to this aspect of environmental law, it is assured that the proposed revisions to an important regulatory program, notwithstanding the goal to simplify how it is applied, will be the subject of continued legal challenges, ultimately winding its way back to the Supreme Court. In considering the potential impacts of the agencies’ proposal, it is important to recognize that the Clean Water Act does not preclude states from regulating all waters within their borders, regardless of whether they are subject to federal regulation under the Clean Water Act. As explained by the agencies, states and tribes are free to manage all waters under their independent authorities.

Navigable Waters Protection Rule

On January 23, the agencies finalized the “Navigable Waters Protection Rule” to establish a new definition of WOTUS. This rule is “step two” of the Trump administration’s two-step process to repeal and revise the definition of WOTUS. The rule’s new name was intended to emphasize that the Clean Water Act applies only to “navigable waters” and not to waters that only flow in direct response to rainfall. The rule sets forth four categories of waters that are federally regulated: traditional navigable waters; tributaries; certain lakes, ponds, and impoundments; and wetlands adjacent to navigable waters. The other categories listed in the 2019 rule — certain ditches and impoundments — are effectively merged into these four categories with some minor changes. The new rule identifies 12 categories as nonjurisdictional, including the following three that were not specifically listed in the 2019 rule: waters not identified as jurisdictional; ephemeral features; and diffuse stormwater run-off. For the latest updates and to read the complete text of the new rule, go to http://www.epa.gov/nwpr.

This column is submitted on behalf of the Environmental and Land Use Law Section, Jon H. Maurer, chair, and Susan Martin, editor.