WOTUS Rule and Applicability
The EPA and US Army Corps of Engineers issued a Rule last week to replace the 2015 Clean Water Rule, which reduces the area of wetlands, headwaters, ephemeral and isolated wetlands and waters that are federally protected.
The proposed new definition of the Waters of the United States Rule or WOTUS, will remove federal protections from streams and related features that flow only following rainfall (also known as ephemeral), as well as wetlands not “physically and meaningfully” connected to larger waterways (sometimes referred to as isolated). The new Rule is based on the late Supreme Court Justice Antonin Scalia’s definition of Waters of the United States, as well as past Supreme Court decisions such as Rapanos and SWANCC. In 2006, Justice Scalia, said the Clean Water Act should extend only to waters and wetlands with a “continuous surface connection” to nearby rivers and streams where it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Under Executive Order, EPA drafted a new Rule that proposes a clearer, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act.
States already have their own authorities to regulate waters within their borders, regardless of whether they are federally regulated as “WOTUS.” Thus, the new Rule gives states and tribes more flexibility to determine how best to manage waters within their borders. Liberty’s natural resource team can directly assist its clients in determining the extent of the federal jurisdiction over the waters within a project boundaries.
A more detailed explanation of what is proposed as jurisdictional versus what will be considered as non-jurisdictional is as follows.
The proposed Rule outlines six clear categories of waters that would be considered “waters of the United States:”
1.Traditional navigable waters (TNWs)
- No change except territorial seas are now TNWs. Under the proposal, traditional navigable waters would be large rivers and lakes, tidal waters, and the territorial seas—such as the Atlantic Ocean, the Mississippi River, the Great Lakes, and tidally influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce.
- In the agencies’ proposal, tributaries would be rivers and streams that flow to traditional navigable waters—such as Rock Creek, which feeds to the Potomac River in Washington, D.C.
- Under the proposal, these naturally occurring surface water channels must flow more often than just when it rains—that is, tributaries as proposed must be perennial or intermittent. Ephemeral features would not be tributaries under the proposal.
- Tributaries can connect to traditional navigable waters directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream.
3. Certain ditches
- A ditch under the proposed rule would be an “artificial channel used to convey water.”
- Under the proposal, ditches would be jurisdictional where they are traditional navigable waters, such as the Erie Canal, or subject to the ebb and flow of the tide.
- Ditches may also be jurisdictional where they satisfy conditions of the tributary definition as proposed and either 1) were constructed in a tributary or 2) were built in adjacent wetlands.
4. Certain lakes and ponds
- Lakes and ponds would be jurisdictional where they are traditional navigable waters, such as the Great Salt Lake in Utah or Lake Champlain along the Vermont-New York border.
- Lakes and ponds would be jurisdictional where they contribute perennial or intermittent flow to a traditional navigable water either directly, through other “waters of the United States,” or through other non-jurisdictional surface waters so long as those waters convey perennial or intermittent flow downstream, such as Lake Pepin in Minnesota or Lake Travis in Texas.
- Lakes and ponds would be jurisdictional where they are flooded by a “water of the United States” in a typical year, such as many oxbow lakes.
- Under the proposal, impoundments of “waters of the United States” would be jurisdictional.
6. Adjacent wetlands
- Under the proposal, wetlands that physically touch other jurisdictional waters would be “adjacent wetlands,” such as Horicon Marsh in Wisconsin.
- Wetlands with a surface water connection in a typical year that results from 1) inundation from a “water of the United States” to the wetland or 2) perennial or intermittent flow between the wetland and a “water of the United States” would be “adjacent.”
- Wetlands that are near a jurisdictional water but don’t physically touch that water because they are separated, for example by a berm, levee, or upland, would be adjacent only where they have a surface water connection described in the previous bullet through or over the barrier, including wetlands flooded by jurisdictional waters in a typical year.
EPA has provided this helpful WOTUS Infographic.
The proposal also clearly outlines what would not be “waters of the United States,” including:
1. Waters that would not be included in the proposed categories of “waters of the United States” listed above—this would provide clarity that if a water or feature is not identified as jurisdictional in the proposal, it would not be a jurisdictional water under the Clean Water Act.
2. Ephemeral features that contain water only during or in response to rainfall.
4. Ditches that do not meet the proposed conditions necessary to be considered jurisdictional, including most farm and roadside ditches, ditches solely in uplands, and ephemeral features.
5. Prior converted cropland.
- This longstanding exclusion for certain agricultural areas would be continued under the proposal, and the agencies are clarifying that this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands.
6. Stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.
7. Wastewater recycling structures such as detention, retention and infiltration basins and ponds, and groundwater recharge basins would be excluded where they are constructed in upland.
8. Waste treatment systems.
- Waste treatment systems have been excluded from the definition of “waters of the United States” since 1979 and would continue to be excluded under this proposal; however, waste treatment systems are being defined for the first time in this proposed rule.
- A waste treatment system would include all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge).
To review the Waters of the United States (WOTUS) Rulemaking visit: https://www.epa.gov/wotus-rule/about-waters-united-states