Final "Waters of the United States"
April 22, 2020
On the 50th Anniversary of the first Earth Day April 22, 2020, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) published the final rule defining the scope of the waters federally regulated under the Clean Water Act, known as “Waters of the United States” in the Federal Register. The definition specifies the scope of Federal Jurisdiction for waters including territorial seas, traditional navigable waters, tributaries, wetlands, lakes, ponds, and impoundments. The Rule becomes effective on June 22, 2020 and has been updated based on the U.S. Supreme Court cases in United States v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. United States, and Rapanos v. United States). The new Rule is consistent with Executive Order 13778 signed on February 28, 2017, entitled Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule.’
The new rule updates the definition of “adjacent wetlands”, and excludes certain types of “ditches” from jurisdiction. Adjacent wetlands are considered a jurisdictional “Water of the United States”. The new Rule includes as jurisdictional only wetlands that abut or are inundated by flooding in a typical year by a territorial sea, traditional navigable water, tributary, or other jurisdictional lake, pond, or impoundment. A tributary consists of a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year either directly or indirectly through other tributaries, jurisdictional lakes, ponds, or impoundments, or adjacent wetlands.
A ditch consists of a constructed or excavated channel, which is not considered jurisdictional unless it either relocates a natural tributary, is constructed in a natural tributary, or is constructed in an adjacent wetland as long as the ditch is perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. Under this Rule, a ditch cannot render an otherwise isolated wetland an ‘‘adjacent wetland’’ and thus jurisdictional on that basis, unless the ditch itself is a tributary. If agencies are not sure whether a ditch was constructed in a tributary given the physical appearance and functionality of the current ditch, the agencies are to review the available evidence to attempt to determine when the ditch was constructed and the nature of the landscape before and after construction. If the evidence does not demonstrate that the ditch was located in a natural waterway, the ditch as well as abutting wetlands are non-jurisdictional under this Rule.
According to the U.S. Geological Survey this Rule is expected to eliminate about 51% of wetlands that may have been jurisdictional before the change in definition. It may serve the regulated community well to request jurisdictional determinations while the new rule is effective as it is expected to face legal challenges and may be changed under a new presidential administration. The repeal of the previous Rule is being challenged in court and may not be enforced by 14 states, including New York.