Agricultural Law in the Spotlight – U.S. EPA and Army Corps of Engineers Issue Proposed Revised Definition of “Waters of the United States”

Written by Chloe Marie – Research Specialist

The Obama administration promulgated the Clean Water Rule (CWR) on June 29, 2015, with a stated purpose of better defining the scope of “waters of the United States” that are protected under the Clean Water Act. This regulatory action was criticized by farm groups and others who viewed the entire approach as constituting government overreach. Shortly after being elected, President Donald Trump indicated his intention to loosen the bonds of environmental constraint on the industry, and as a result supported a revision of the CWR.

This article will provide some background on the regulatory process concerning the revision of the CWR as well as an overview of the content of recent proposed rulemaking. 

Background

On February 28, 2017, President Donald Trump issued a Presidential Executive Order to revise, amend, or rescind the Clean Water Rule (CWR) promulgated by the Obama administration. President Trump directed the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) to initiate steps towards such revision in the national interest – the Executive Order emphasizes the necessity to “ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”

Consequently, on March 6, 2017, the two federal agencies published in the Federal Register a Notice of Intent to review and rescind or revise the CWR. The Notice states that the agencies will provide a revised interpretation of the term “navigable waters” in conformity with the opinion of Justice Scalia in Rapanos v. United States to allow for clarity on how the Clean Water Act applies to the stakeholders’ activities.

On July 27, 2017, the agencies issued a Proposed Rule setting out milestones for reviewing and revising the CWR. As a first step, EPA and the Corps proposed to rescind the 2015 definition of “waters of the United States.” They proposed to re-establish the regulatory definitions of U.S. waters that existed prior to the enactment of the 2015 CWR. The proposed rule also specified that “nothing in this proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more broadly than the federal law definition.” The second step was to develop a new definition of the U.S. waters subject to a separate notice and comment rulemaking. The public comment period on this Proposed Rule closed on September 27, 2017.

On June 29, 2018, the agencies published a supplemental notice of proposed rulemaking to the proposed repeal of the 2015 CWR providing further clarification and seeking additional comments on the impacts of permanently repealing the 2015 rule in its entirety. The additional public comment period closed on August 13, 2018.

Most recently, EPA and the Corps issued a pre-publication version of a proposed revised definition of “Waters of the United States” on December 11, 2018.

Proposed Revised Definition of “Waters of the United States”

The agencies propose to include the following terms into the definition of U.S. waters: “traditional navigable waters, comprising the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.”

The agencies also propose to redefine the terms tributary, ditches, adjacent wetlands, abut, and direct hydrologic surface connection. Further, the proposed rule clarifies the concept of “waters of the United States,” which would not be defined as broadly as in the 2015 CWR. In this regard, the agencies explained that U.S. waters must be understood within the ordinary meaning of the term and would include oceans, rivers, streams, lakes, ponds, and wetlands.

The definition of U.S. waters in the proposal would exclude water features “that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off; wastewater recycling structures constructed in upland; and waste treatment systems.”

The proposed rule suggests that developing geospatial datasets of U.S. waters could help in jurisdictional determinations. The proposal states that “these datasets, when fully developed, would promote greater regulatory certainty and relieve some of the regulatory burden associated with determining the need for a permit and play an important part in helping to attain the goals of the CWA.”

On December 28, 2018, EPA and the Corps announced that a public hearing will be held in Kansas City, KS, on January 23, 2019 to provide interested parties an opportunity to present their comments on the proposed revised definition.

Stay tuned for further legal and regulatory developments!

References:

-       Exec. Order No. 13778, 82 Fed. Reg. 12497 (Mar. 3, 2017)

-       Notice of Intent; Intention to Review and Rescind or Revise the Clean Water Rule, 82 Fed. Reg. 12532 (Mar. 6, 2017)

-       Proposed Rule; Definition of “Waters of the United States” -Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899 (July 27, 2017)

-       Supplemental Notice of Proposed Rulemaking; Definition of “Waters of the United States” -Recodification of Pre-Existing Rules, 83 Fed. Reg. 32227 (July 12, 2018)

-       Proposed Rule; Revised Definition of “Waters of the United States,” U.S. EPA Pre-Publication Version (Dec. 11, 2018)

-       Notice of Public Hearing; Revised Definition of “Waters of the United States,” 83 Fed. Reg. 67174 (Dec. 28, 2018)

Additional resources on this topic from the Center for Agricultural and Shale Law:

-       Shale Law in the Spotlight – Executive Order on the “Waters of the United States” Rule (March 8, 2017)

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.