January 23, 2020Client Alert

EPA and Department of the Army Release Navigable Waters Protection Rule, Clarifying Jurisdictional Waters Under Federal Control

The Trump administration today released its new final rule under the Clean Water Act (CWA) clarifying the limits of federal jurisdiction over waters and wetlands that are connected to “traditional navigable waters and the territorial seas.” The new rule, called the “Navigable Waters Protection Rule,” replaces the Obama administration’s 2015 definition of “waters of the United States,” which was repealed last year. The Trump administration repealed the 2015 rule in October 2019 as step one in a promised two-step effort to clarify federal regulation of the nation’s waterways and restore more authority to the states.

The new rule defines four categories of federal jurisdictional waters: (i) traditional navigable waters and the territorial seas; (ii) perennial and intermittent tributaries to those waters; (iii) lakes, ponds and impoundments of those jurisdictional waters; and (iv) adjacent wetlands. The last category includes wetlands that abut (meaning they “touch” at least one point or side of jurisdictional waters) or that are separated by a natural or manmade barrier which allows for direct hydrologic surface connection between the wetland and the jurisdictional water.

The final rule also provides twelve categories of waters that are excluded from federal jurisdiction. Management of these resources are left to the states. Those categories of non-jurisdictional waters include groundwater; ephemeral features that only flow in direct response to precipitation; many farm and roadside ditches; prior converted croplands so long as the land has been used at least once in the preceding five years for or in support of agricultural purposes; artificial lakes and ponds, including reservoirs and farm, irrigation and stock watering ponds; artificially irrigated lands, including fields flooded for agricultural production; and upland stormwater control features, among others.

According to the prepublication version of the final rule preamble, the rule “presents a unifying legal theory for federal jurisdiction over those waters and wetlands that maintain a sufficient surface water connection to traditional navigable waters or territorial seas.” The new rule contains extensive definitions of operative terms and the Administration touts the rule as providing certainty for landowners, developers, farmers, regulators, and the general public.

The 2015 Rule and its Repeal

The Obama administration’s 2015 rule redefined and expanded the scope of federal water protections to include a broader swath of streams, tributaries, and wetlands with a “hydrologic connection” to traditional protected waters like navigable waters, interstate waters, and territorial seas. Critics of the 2015 rule called it an unconstitutional land-grab and asserted that EPA expanded its authority well beyond Congressional intent.

Final Rule to Scale Back Federal Oversight

EPA’s efforts to revise the definition of “waters of the United States” were directed by Executive Order 13778, entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States’ Rule.” In the Order, signed February 2017, President Trump instructed EPA and the Army Corps of Engineers to revisit the Obama Administration’s 2015 rule and clarify the scope of federal jurisdiction under the Act. Today’s action fulfills a campaign promise to industry group constituents by President Trump, whose Administration has consistently derided the 2015 rule as an “egregious power grab” intruding upon the traditional authority of states to regulate their own waterways including non-navigable sources and groundwater.

According to EPA, the proposed revised definition was “intended to increase CWA program predictability and consistency by increasing clarity [and to] strike a balance between Federal and State waters [that would] carry out Congress’ overall objective to restore and maintain the integrity of the nation’s waters in a manner that preserves the traditional sovereignty of States over their own land and water resources.” See 84 Fed. Reg. 4154, 4156 (Feb. 14, 2019). The Trump Administration’s approach has been hotly contested by environmental groups and Democratic lawmakers, however, who argue the revision will eliminate nearly all federal protections for streams and wetlands. Environmental groups have vowed to challenge the new rule in court.

States’ Rights and Regulatory Implications

EPA’s final rule represents a major political victory for industry groups including public utility and farming/ranching companies, for whom the CWA permitting process is often one of the most onerous aspects of project development and operation. So, too, does the rule represent the latest in the Trump Administration’s decisive steps to return to an era of state-driven environmental regulations, particularly with respect to clean water. The Administration asserts that the final rule results in a clear distinction between federal jurisdictional waters and those waters subject to control by the states and tribes.

Michael Best remains committed to tracking regulatory and case law developments pertaining to the CWA and its implementing regulations. To learn more about how the new rule affects your business, please contact your Michael Best attorney.

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