The Navigable Waters Protection Rule Narrows the Scope of Waters Subject to the Clean Water Act

On January 23, 2020, the U.S. Environmental Protection Agency and the Department of the Army, Corps of Engineers (collectively, the "Agencies"), finalized the Navigable Waters Protection Rule (the "Rule") to define the scope of waters subject to federal regulation under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. (1972), or "waters of the United States" ("WOTUS"). The purpose of this long-anticipated replacement to the Obama WOTUS rule is to provide predictability and consistency in evaluating whether water bodies are subject to federal regulation. The agriculture industry expected clarification concerning whether certain ephemeral streams and ditches were subject to regulation, which the new Rule has provided, excluding these "temporary" water bodies from regulation. The final Rule will become effective sixty (60) days after publication in the Federal Register.

The scope of waters subject to federal regulation under the CWA has been unclear and contentious since its enactment. Section 404 of the CWA prohibits discharge of dredged or fill material into the "navigable waters." 33 U.S.C.A. § 1344. "Navigable waters" means the "waters of the United States, including the territorial seas." 33 U.S.C.A. § 1362(7). However, the term "waters of the United States," as used in the CWA, was not further defined. Several cases have considered the scope of WOTUS, including key U.S. Supreme Court cases[1].
 
On June 29, 2015, the Obama WOTUS rule was published citing the "significant nexus standard" from the U.S. Supreme Court decision in Rapanos v. United States, as important for the interpretation of the scope of the CWA. The Obama WOTUS rule was considered by many industries, including agriculture, as an overreach of the agencies' jurisdiction, while environmental groups argued the rule excluded too many waters. Thirty-one (31) states and several nonparties challenged the Obama WOTUS rule. Much of the controversy and legal debate surrounding the Obama WOTUS rule focused on the definition of tributaries and adjacent waters.
 
The final Rule provides that WOTUS means: (1) territorial seas and navigable waters, (2) tributaries, (3) lakes and ponds, and impoundments of jurisdictional waters, and (4) adjacent wetlands. Similar to the Obama WOTUS rule, the Rule includes certain exclusions from the definition of WOTUS, including: (1) waters or water features that are not jurisdictional waters; (2) groundwater; (3) ephemeral features; (4) diffuse stormwater run-off and sheet flow; (5) ditches that are not territorial seas or tributaries, and portions of ditches constructed in adjacent wetlands that do not satisfy the definition of adjacent wetlands; (6) prior converted cropland; (7) artificially irrigated areas; (8) artificial lakes and ponds; (9) certain water-filled depressions and pits; (10) stormwater control features; (11) groundwater recharge, water reuse, and wastewater recycling structures; and (12) waste treatment systems. Additionally, the Rule provides definitions for important terms such as adjacent wetlands, ditch, ephemeral, and intermittent, among others.
 
As mentioned above, a key change in the Rule from the Obama WOTUS rule is the exclusion of ephemeral streams and wetlands that are not adjacent to non-wetland jurisdictional waters. The Rule presumably shifts responsibility for regulation of non-jurisdictional waters, which were previously under federal regulation, to the states and tribes, provided they deem such regulation necessary. 
 
Environmental groups are already pledging to challenge the Rule, and certain states are considering similar action. Uncertainty over the scope of waters subject to federal regulation is likely to continue, with a potential regulatory patchwork of application of the Rule across the states. Indeed, it is expected the matter will not be resolved until the Supreme Court considers the scope of WOTUS again. At this time, those in agriculture should consider how the Rule affects the regulation of water bodies and wetlands on their farms, ranches, or other business properties and developments, and stay tuned as the Rule progresses.

A case to watch in the coming months is Hawaii Wildlife Fund v. County of Maui, which involves a municipal wastewater treatment facility. The Supreme Court heard oral arguments in this case on November 6, 2019. This case involves treated water that was injected into groundwater and ultimately discharged into the Pacific Ocean. The specific question being considered by the Supreme Court is whether a permit is required when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source. Maui does not directly apply to agriculture, but its outcome concerning point and nonpoint sources will have implications for the industry, including application of fertilizers and animal feeding operations.

If you need assistant in determining how this Rule affects your farm or properties, please contact Amy Berg, Terri Czajka, Tim Ochs, Melissa Proffitt or any of Ice Miller’s agribusiness attorneys. Click here to see the full list.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.