EPA and the Corps of Engineers have finally proposed a new definition of “waters of the United States” to replace the Obama-era definition. The proposed definition is consistent with the executive order issued by President Trump in February 2017, which sought a regulatory definition similar to the more restrictive view of jurisdiction suggested by Justice Scalia in the Rapanos decision.
Essentially, the proposed definition utilizes a “baseline concept” that jurisdictional waters include only waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that all waters are not necessarily “waters of the United States.” As such, the proposed rule includes traditional navigable waters, including 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.
Traditional navigable waters are those waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. These types of waters have been historically regulated because they are “navigable-in-fact,” as they were traditionally used as highways over which trade and travel were conducted for commerce. This category now includes the territorial sea and all waters subject to the ebb and flow of the tide.
Tributaries of traditional navigable waters are regulated. Under the proposed rule, a tributary is a river, stream or similar naturally occurring surface water channel that contributes perennial or intermittent flow to traditional navigable waters. Other waters are also regulated. These include lakes and ponds that are traditional navigable waters, or contribute perennial or intermittent flow to traditional navigable waters, and lakes and ponds that are flooded by jurisdictional waters. Impoundments of any jurisdictional water continue to be regulated.
Only certain ditches are regulated. Ditches are broadly defined as artificial channels used to convey water. Ditches that satisfy any of the conditions to be a traditional navigable water are regulated. Also regulated are ditches constructed in a tributary or that relocate or alter a tributary if the ditch also satisfies the conditions of the tributary definition, as well as ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition. Any ditch, as defined, that is not included above is not regulated.
Of course, certain wetlands are regulated. However, the wetland must be adjacent to jurisdictional waters, such as traditional navigable waters or a regulated tributary, lake, pond, impoundment or ditch. To be adjacent, the wetland must abut or have a direct hydrologic surface connection to jurisdictional waters. “Abut” means to touch at least at one point or side of a jurisdictional water. A direct hydrologic surface connection occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water. A wetland that is physically separated from jurisdictional waters by upland or by dikes, barriers or similar structures and also lacking a direct hydrologic surface connection to such waters is not adjacent.
The proposed rule seems to provide the “bright line” and ease of application the previous administration touted when the existing rule was published. However, it clearly is more restrictive than the existing rule and will likely be the subject of litigation when finalized.