Disclaimer–This blog post is really detailed.  If you’re not into all the nerdy legal technicalities, I’d read the Background, Summary of WOTUS Rule v. NWPR, and What Happens Now and go on about your day.

If you have been around for a while, you know we have been following the saga surrounding the definition of “Waters of the United States” or “WOTUS” for several years.  On April 21, 2020, the Environmental Protection Agency published the Navigable Waters Protection Rule (NWPR), the newest regulatory definition of WOTUS.  [Read Rule here.]  The NWPR became effective on June 22, 2020 across the United States, with the exception of Colorado, where a federal judge entered an injunction pending litigation.

For a deeper dive into the NWPR, click here for a recent podcast episode featuring Jim Bradbury walking us through the scope of the Rule and the potential implications for agriculture.

Photo by Suhel Nadaf on Unsplash

Background

The Clean Water Act, passed in 1972, is intended to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.  With regard to agriculture, the two most important sections are Section 402 (dealing with point source discharges) and Section 404 (dealing with dredge and fill).  The Clean Water Act provides federal regulatory jurisdiction over “waters of the United States,” but the meaning of “waters of the United States” was left undefined by the Act.  For decades, courts have wrestled with the proper scope of these words.

In 1985, the Court broadly construed the phrase as including wetlands adjacent to traditional navigable waters in Michigan in United States v. Riverside Bayview Homes.  In 2001, the issue was again before the Court in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers.  There, the Court found that isolated, non-navigable intrastate ponds used by migratory birds were not covered by the CWA.  In making this finding, the Court stated that the difference between this case and Riverside Bayview Homes was the lack of a “significant nexus” between the ponds and the navigable waters.  Finally, in 2006, the Supreme Court decided (in a plurality opinion on 4 justices) Rapanos v. United States, holding that waters of the United States covered “relatively permanent, standing or continuously flowing bodies of water” connected to navigable waters.  The opinion noted that this did not necessarily exclude streams, rivers or lakes that might go dry in extraordinary circumstances like a drought.  A concurring opinion by Justice Kennedy would have defined “waters of the United States” by applying the “significant nexus standard.”

In 2015, the Environmental Protection Agency (EPA) and US Army Corps of Engineers (COE) under the Obama Administration passed a regulation, referred to as the WOTUS Rule, defining “waters of the United States.” Numerous lawsuits filed and resulted in various injunctions around the country.  In 2017, President Trump issued an Executive Order instructing the agencies to “rescind or revise” the 2015 definition and “consider interpreting” waters of the United States consistent with Justice Scalia’s opinion in Rapanos. [Read prior blog post here.]

The EPA has since rescinded the 2015 rule and has now published the NWPR.  Numerous lawsuits have been filed around the country challenging the rule.  [Click here for a summary of pending litigation from the National Ag Law Center.]

Navigable Waters Protection Rule 

There are essentially three sections to the rule: (1) Jurisdictional waters; (2) Non-jurisdictional waters; and (3) Definitions.

(1) Jurisdictional Waters

The NWPR provides that “waters of the United States” are defined as:

(i) The territorial seas, and waters currently used, previously used, or may be susceptible to use in interstate or foreign commerce, including waters subject to the ebb and flow of the tide;

(ii) Tributaries;

(iii) Lakes, ponds, and impoundments of jurisdictional waters; and

(iv) Adjacent wetlands.

As with the prior WOTUS rule, and most legal issues, the devil is in the definitions.  The NWPR includes the following definitions applicable to jurisdictional waters:

• “Waters subject to the ebb and flow of the tide”:  “Those waters the rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun.”  These waters end where “the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.”
• Tributary: A river, stream, or similar naturally occurring surface water channel that contributes surface water flow into a jurisdictional water in category 1(i) in a typical year either directly or through a tributary; lake, pond, or impoundment of jurisdictional water; or adjacent wetland.  A tributary must be perennial or intermittent in a typical year.  The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to satisfy the flow conditions of the definition.  A tributary does not lose jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature such as a subterranean river, through a culvert, dam, tunnel, or similar artificial feature, or similar natural feature.  It includes a ditch that either relocates a tributary, is constructed in a tributary, or is constructed in an adjacent wetland as long as the ditch satisfies the flow conditions of the definition.
• Perennial: Surface water flowing continuously year-round.
• Intermittent: Surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g. seasonally when the groundwater table is elevated or when snowpack melts).
• Lakes, ponds, and impoundments of jurisdictional waters: Standing bodies of open water that contribute surface flow to a jurisdictional water  identified in category 1(i) in a typical year either directly or through a tributary; lake, pond, or impoundment of jurisdictional water; or adjacent wetland. A lake, pond or impoundment does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature.  It is also jurisdictional if it is inundated by flooding from a water in categories (1)(i), (ii), and (iii) above.
• Adjacent wetlands: Wetlands that: (A) abut, meaning to touch at least one point or side of, a water identified in category (1)(i), (ii), or (iii) above; (B) are inundated by flooding from a water identified in category (1)(i), (ii), or (iii) above in a typical year; (C) are physically separated from a water identified in category (1)(i), (ii), or (iii) above only by a natural berm, bank, dune, or similar natural feature, or (D) are physically separated from a water identified in category (1)(i), (ii), or (iii) above only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the wetlands and the water identified in category (1)(i), (ii), or (iii) above in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature.  An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, so long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.
• Wetlands mean areas that are inundated or saturated by surface or groundwater 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.  Wetlands generally include swamps, marshes, bogs, and similar areas.

(2) Non-Jurisdictional Waters

The following categories are not “waters of the United States,” meaning the Clean Water Act is not applicable:

(i) Waters or water features not identified as “jurisdictional waters” under this definition;

(ii) Groundwater, including groundwater drained through subsurface drainage systems;

(iii) Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;

(iv) Diffuse stormwater run-off and directional sheet flow over upland;

(v) Ditches that are not waters identified in Section (1)(i) or (ii) of the definition, and those portions of ditched constructed in waters identified in Section (1)(iv) of this definition that do not satisfy the definition of “adjacent wetlands”;

(vi) Prior converted cropland;

(vii) Artificially irrigated areas, including fields flooded for ag production, that would revert to upland should application of irrigation water to that area cease;

(viii) Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or non-jurisdictional waters, so long as those artificial lakes and ponds are not impoundments of jurisdictional waters that meet the definitions of “lakes and ponds and impoundments of jurisdictional waters” discussed in section (1)(iii) above;

(ix) Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;

(x) Stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff;

(xi) Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, constructed or excavated in upland or in non-jurisdictional waters; and

(xxi) Waste treatment systems.

Again, the definitions matter a great deal.  Here are key definitions related to this section in addition to those listed above:

• Ephemeral:  Surface water flowing or pooling only in direct response to precipitation (e.g., rain or snow fall).
• Ditch:  A constructed or excavated channel used to convey water.
• Prior converted cropland:  Any area that, prior to 12/23/85, was drained or otherwise manipulated for the purpose, or having the effect, of making production of agricultural products possible.  Designations made by the USDA will be recognized.  An area is no longer considered prior converted cropland when the area is abandoned and has reverted to wetlands.  Abandonment occurs when prior converted cropland is not used for, or in support of, agricultural purposes at least once in the immediately preceding 5 years.
• Upland: Any area that under normal circumstances does not satisfy all three wetland factors (hydrology, hydrophytic vegetation, hydric soils) and does not lie below the ordinary high water mark or the high tide line of a jurisdictional water.
• Ordinary high water mark:  That line on the shore established by the fluctuation of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
• High tide line: The line of intersection of the land with the water’s surface at the maximum height reached by a rising tide.  In the absence of actual data, this may be determined by a line of oil or scum along the shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide.  The line includes spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicated reach of the tide due to the piling up of water against a coast by strong winds, such as those accompanying a hurricane or other intense storm.

Summary of WOTUS Rule v. NWPR

The NWPR differs from the Obama WOTUS rule in three primary ways: (1) the definition of “tributary”; (2) adjacent wetlands versus adjacent waters; (3) significant nexus.  Let’s look briefly at each.

Tributary

The difference between the two rules approach hinges on the issue of ephemeral streams–those streams that flow only in direct response to precipitation.  Under the WOTUS Rule, a “tributary” is a water contributing flow either directly or through another water to a jurisdictional water that was “characterized by the presence the physical indicators of a bed and banks and an ordinary high water mark.”  Critics pointed out that this would include ephemeral streams.  The NWPR, on the other hand, provides that a tributary must be perennial or intermittent in a typical year, thus expressly excluding any ephemeral streams from falling within the definition.

Adjacent Wetlands versus Adjacent Waters

Another divergence between the rules has to do with the scope of the inclusion of wetlands in the rule.  Under the WOTUS definition, “all waters” adjacent to a jurisdictional water, including wetlands, ponds, lakes, oxbows, impoundments and similar waters are jurisdictional.  Adjacent is defined as meaning “bordering, contiguous, or neighboring” a jurisdictional water.  “Neighboring” means all waters located within 100 feet of the ordinary high water mark of a jurisdictional water, all waters located within the 100 year floodplain of a jurisdictional water and not more than 1,500 feet from the ordinary high water mark of such water, and all waters located within 1,500 feet of the high tide line of a jurisdictional water and all waters within 1,500 feet of the Great Lakes.

The NWPR, however, made two significant changes.  First, it limited the jurisdictional scope to apply only to adjacent wetlands, not to all adjacent waters.  Second, the NWPR did not maintain the distance approach included in the WOTUS rule, opting instead to focus on waters that physically touch wetlands or are physically separated only by certain natural features or certain artificial features while still maintaining a direct hydrological connection, or are inundated by flooding of jurisdictional waters.

Significant Nexus 

Lastly, the WOTUS rule includes a provision deeming certain waters jurisdictional if they meet certain factual criteria and have a “significant nexus” to a water used in interstate or foreign travel, interstate waters and wetlands, or the territorial seas.  The NWPR does not provide for inclusion as jurisdictional based on a “significant nexus.”

First, the WOTUS rule includes a provision that all waters located within the 100 year floodplain of a water used in interstate and foreign commerce, interstate water, and the territorial seas and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a jurisdictional water are jurisdictional.  Not only does the NWPR not include a provision for significant nexus, it also does not include waters based on their distance from other waters as is done in this provision of the WOTUS rule.

Second, regional water features jurisdictional if it was determined, on a case-by-case basis they “have a significant nexus” to a water used in interstate or foreign travel, interstate waters and wetlands, or the territorial seas.  In particular, the jurisdictional water features included in this category are: (i) prairie potholes (a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest); (ii) Carolina and Delmarva bays (ponded, depressional wetlands that occur along the Atlantic coastal plain); (iii) Pocosins (evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic Coastal plain); (iv) Western vernal pools (seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers); and (v) Texas coastal prairie wetlands (freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast).  The NWPR makes no mention of any of these specific water features.

What Happens Now?

As Jim Bradbury said once on a prior podcast, “I think WOTUS is French for all the lawyers get rich.”  Given all of the pending litigation surrounding the rule, a courthouse will likely be where we head next for some time.  To read a summary by the National Agricultural Law Center of some of the pending lawsuits, click here.  Meanwhile, landowners, agricultural producers, land developers, construction companies, and others will struggle to determine if certain lands are included within this definition or not, facing fines of tens of thousands of dollars per day if they decide incorrectly and an enforcement action is filed.