The United States Environmental Protection Agency (EPA) recently published a final rule called the Navigable Waters Protection Rule (Rule) redefining “Waters of the United States” (WOTUS) that shortens the jurisdictional reach of the Federal Clean Water Act, especially with regards to discharges of pollutants. The new Rule will take effect on June 22, 2020, absent any court challenges. The Rule takes a step back from the previous science-focused approach in favor of a simplified definition, which generally reduces the federal reach.
WOTUS defines the scope of federal authority under the National Pollutant Discharge Elimination System (NPDES) and dredge and fill programs of the Clean Water Act, and impacts regulatory authority assumed by states, such as Parts 31, 301 and 303 of Michigan’s Natural Resources and Environmental Protection Act (NREPA). After decades of debate over the meaning of WOTUS, the EPA has taken a significant step towards simplifying the definition that determines what water bodies qualify as WOTUS.
The Rule defines WOTUS as “territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters,” but the definitions of many of these terms are substantially narrower under the new Rule. The Rule also categorically excludes certain waters or water features: groundwater; ephemeral features; stormwater run-off and stormwater control features; most ditches; prior converted cropland; artificially irrigated areas; wastewater recycling features; and water treatment systems.
Artificial lakes and ponds, including water storage reservoirs, are specifically excluded from WOTUS as long as the water body is either upland or in non-jurisdictional waters, and is not an impoundment of jurisdictional water. WOTUS does include an impoundment of waters from a territorial sea, traditional navigable water, tributary or adjacent wetland, but not an impoundment of a non-WOTUS body of water.
Water-filled depressions incidental to mining or construction activity, and pits excavated for purposes of obtaining fill, sand, or gravel are specifically excluded from the definition. For mining and construction companies whose excavations create an impoundment of surface water, the new Rule limits the reach of federal regulation compared to the previous regulations. The previous 2015 Rule, for example, included impoundments that were merely “adjacent” to WOTUS. That is not the case under the new Rule, making the need for a federal dredge and fill permit for wetlands less likely.
Formerly broad definitions of “adjacent” and “tributary” have been eliminated from the Rule. Now, a “tributary” is more simply defined as a river, stream or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditionally navigable water in a typical year. The previous 2015 rule applied a scientific analysis in determining “tributary” status—it called for an analysis of “physical indicators,” including a water bed, banks and a high water mark. The 2015 rule also included man-made and man-altered tributaries, while the new Rule limits these terms to naturally occurring waters.
“Adjacent wetlands” are considered WOTUS only if they abut a body of water already classified under the Rule (e.g., a territorial sea, traditional navigable water, a tributary, lake, pond or impoundment of a jurisdictional water); are inundated by flooding from a WOTUS body in a typical year; and any physical separation from a WOTUS is limited. The narrow scope of “abut” is important to the definition: the wetland must touch a territorial sea, traditional navigable body of water, etc., at least at one point or side. The scope of wetlands captured under the Rule is limited compared to the 2015 rule; that rule broadly included wetlands “neighboring” WOTUS waters, which required quantitative analysis (e.g., measuring the distance of the wetland from the ordinary high water mark of a WOTUS water).
The Rule does leave unanswered questions. For instance, Michigan—one of the two states that has assumed responsibility for administering the Section 404 dredge and fill permit program under the Clean Water Act—has statutes in place that are inconsistent with the new Rule. Part 303 of Michigan’s NREPA regulates wetlands “contiguous” to Great Lakes, Lake St. Clair, an inland lake, pond, river or streams, and wetlands not contiguous but more than five acres in size or otherwise deemed “essential” to preserving Michigan’s natural resources. This goes beyond the Rule’s reach of “adjacent wetlands.” Similarly, Part 301 regulates the creation, alteration, or placement of structures in and dredging of “inland lakes and streams” that have definite banks, bed, evidence of continuous flow or continued occurrence of water greater than five acres (i.e., waters not necessarily meeting the new WOTUS definition). To add to the uncertainty, both Parts 301 and 303 include provisions limiting their regulatory reach to WOTUS as defined by federal rule. It is likely that Michigan’s Department of Environment, Great Lakes, and Energy (EGLE) will argue that the WOTUS rule in effect at the time the statute was enacted is what applies, leaving Michigan’s regulatory reach under the Clean Water Act broader than the federal rule. Regardless, the Memorandum of Agreement between EGLE and EPA may need to be revised.
On April 23, 2020, the Supreme Court created additional uncertainty. In County of Maui v. Hawaii Wildlife Fund, the Supreme Court held that parties must have an NPDES discharge permit for discharges to groundwater if the discharge “is the functional equivalent of a direct discharge from the point source into navigable waters.” Again, the new Rule specifically excludes “groundwater” from the definition of WOTUS, but the Supreme Court has found that the Clean Water Act governs discharges to groundwater if the discharges ultimately reach navigable waters, or other WOTUS. The Supreme Court’s “functional equivalent” test creates more questions than it answers. But the Court did provide factors to consider, such as the distance the pollutant must travel between the discharge and the WOTUS, and the time it would take the pollutant to make that journey. The EPA and state agencies will likely prepare guidance documents explaining other factors to consider in determining whether a discharge to groundwater is functionally equivalent, and lower courts will inevitably have to do the same. Indeed, the Supreme Court remanded the case to the Ninth Circuit to apply the functional equivalent test to the Maui case, so the Ninth may have the first opportunity to explore relevant factors to apply.