EPA and U.S. Army Corps of Engineers Finalize Navigable Waters Protection Rule

On January 23, 2020, the Environmental Protection Agency and the Department of the Army, Corps of Engineers (collectively referred to as the “Agencies”) finalized the long-anticipated Navigable Waters Protection Rule (“2020 Rule”) to define “waters of the United States” regulated under the Clean Water Act (“CWA” or “Act”). The CWA establishes the basic structure for regulating discharges of pollutants into the nation’s “navigable waters,” which is vaguely defined in the Act as “waters of the United States, including the territorial seas.” This definition has proved difficult to apply to the myriad of different types of water bodies within U.S. jurisdiction, resulting in numerous judicial and administrative efforts to determine the scope of the CWA. The 2020 Rule is the final step in the Trump administration’s plan to replace the Obama administration’s definition of “waters of the United States” set forth in the 2015 Clean Water Rule (“2015 Rule”). To complete the first step, on October 22, 2019, the Agencies published the final rule to repeal the 2015 Rule (“Repeal Rule”) and returned to the pre-existing 1986 rule and subsequent agency guidance documents. The Repeal Rule became effective on December 23, 2019, although it has already been challenged in numerous actions filed in federal court.

The 2020 Rule redefines the nature and scope of the waterbodies that the Agencies have authority to regulate under the CWA. As instructed by Executive Order 13778 (February 28, 2017), the Agencies generally modeled the 2020 Rule on the four-justice plurality opinion authored by Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006), rather than the “significant nexus test” approach described in Justice Anthony Kennedy’s concurring opinion in that case. In addition to the 2020 Rule itself, the Agencies released numerous fact sheets and supporting documents, including an overview of the 2020 Rule and the manner in which the Agencies intend to implement the 2020 Rule. The Agencies also intend to hold a public webcast on the 2020 Rule on February 13, 2020.

Several of the key divergences from the 2015 Rule include:

• The four categories of waters that will be federally regulated under the 2020 Rule are: (1) the territorial seas and traditional navigable waters; (2) perennial and intermittent tributaries to those waters; (3) lakes and ponds, and impoundments of jurisdictional waters; and (4) wetlands that are adjacent to jurisdictional waters (other than waters that are themselves wetlands).

• By contrast, the 2015 Rule defined eight categories as waters of the U.S., incorporating significantly more waters into the definition of “waters of the United States” than will be covered by the 2020 Rule. Particularly relevant in the westernmost states, certain ephemeral streams and other ephemeral features, including some prairie potholes and western vernal pools, were regulated under the 2015 Rule. Ephemeral features are specifically excluded from the 2020 Rule’s definition.

• In addition, many wetlands that would have been regulated under the 2015 Rule as waters located within specified distances of jurisdictional waters will no longer be regulated because they are not physically “adjacent” to other jurisdictional waters as required by the 2020 Rule. “Adjacent wetlands” are now defined as “wetlands that abut or have a direct hydrological surface connection to other waters of the United States in a typical year.” This includes wetlands separated from jurisdictional waters only by a natural berm, bank, dune, or other similar natural feature but not other wetlands. A “typical year” is based on a rolling 30-year period and is the subject of an agency fact sheet.

• There are 12 categories of exclusions in the 2020 Rule. As noted, ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools, are now excluded from the definition of “waters of the United States.” Diffuse stormwater runoff and directional sheet flow over upland are now also excluded. Some of the 2020 Rule exclusions were also exclusions in the 2015 Rule, including groundwater, certain waste treatment systems, artificially irrigated areas, artificial lakes and ponds in dry land, and previously converted cropland.

The 2020 Rule will go into effect 60 days after it is published in the Federal Register.

The Environmental Group of Davis Graham & Stubbs LLP works to ensure compliance, minimize potential exposure to environmental liability, and win cases when litigation arises. Please contact Zach Miller, Mave Gasaway, Andrea Bronson, or Kate Sanford if you would like to discuss these developments further or other water quality matters of concern to your company.