The Trump administration recently issued new regulations that redefine what kinds of water bodies are afforded protection under the Clean Water Act (CWA). The final rule, which the Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) have dubbed the “Navigable Waters Protection Rule,” narrows the scope of federal jurisdiction under the CWA. The new regulations replace the “Clean Water Rule” (also referred to as Waters of the United States [WOTUS] Rule) issued in 2015 by the Obama administration.
Agency regulations divide protected waters into several categories. The changes included in the new Navigable Waters Protection Rule are focused on tributaries, ditches, lakes and ponds, impoundments, and wetlands, with no changes proposed for territorial seas and waters used in commerce (or traditional navigable waters). The proposed changes are expected to constrain federal jurisdiction for some ephemeral water bodies, particularly those that lack a surface water connection (or drain) to jurisdictional tributaries or waters used in commerce. By reducing the scope of water bodies protected under the new rule, some proposed impacts that may have required nationwide or individual permits under CWA Section 404 will not be expected to in the future.
Some background on CWA jurisdiction
Congress passed the CWA in 1972, thereby establishing federal jurisdiction and regulatory authority over “waters of the United States.” Congress did not precisely define this phrase, however, and instead left that responsibility to EPA and the Corps. Lacking a precise statutory definition of “waters of the United States,” the agencies have struggled to adopt straightforward regulations for implementing the CWA. Further, the ambiguity has caused controversy surrounding the CWA’s reach.
This uncertainty culminated in two Supreme Court decisions in the 2000s that reined in what until then had been an expansive view of federal jurisdiction under the CWA. Unfortunately, these decisions proved just as troublesome as the regulations they meant to clarify. In particular, a 2006 split decision in Rapanos v. United States created confusion. Justice Antonin Scalia argued the CWA only applied to water bodies “with a continuous surface connection” to navigable waters. Justice Anthony Kennedy, on the other hand, argued the CWA applied to any water bodies that “affect the chemical, physical, and biological integrity of other covered waters” as evidenced by a “significant nexus” test. Further muddying the waters, it was unclear which opinion took primacy.
In the wake of Rapanos, the agencies issued non-binding guidance in 2008 to implement Kennedy’s “significant nexus” test. However, the guidance failed to resolve many questions concerning the scope of federal jurisdiction and prompted arduous case-by-case analyses of whether the CWA applied to certain water bodies.
Amid persistent uncertainty in the post-Rapanos landscape, the agencies issued the Clean Water Rule in 2015 to circumscribe federal jurisdiction under the CWA. Among other changes, the 2015 rule specified which kinds of water bodies would automatically receive protection under the CWA, exempted certain kinds of water bodies from regulation, and identified which water bodies still required case-by-case analyses. However, litigation and court orders delayed and constrained the implementation of the 2015 rule. When it eventually took effect in 2018, the Clean Water Rule applied in just 22 states, leaving other states bound to earlier versions of the regulations or awaiting direction from the courts. Despite its attempt at clarification, the 2015 rule ultimately created a confusing picture of CWA jurisdiction.
It was against this backdrop that President Trump issued Executive Order 13778 in 2017, which directed the agencies to repeal and replace the Obama-era Clean Water Rule. The agencies completed their repeal of the Clean Water Rule in December 2019 and have now replaced it with the new regulations set forth in the Navigable Waters Protection Rule.
What is included in the Navigable Waters Protection Rule?
The Navigable Waters Protection Rule recognizes four categories of jurisdictional water bodies under the CWA:
- Traditional navigable waters
- Lakes, ponds and impoundments
- Adjacent wetlands
The Navigable Waters Protection Rule also specifies 12 categories of water bodies that are excluded from the CWA’s purview. Although some of these exclusions are consistent with previous CWA regulations, others are new. Notably, the new rule eliminates protections for ephemeral streams common throughout the arid West. The new rule further removes protections for wetlands that lack direct surface connections to intermittent or perennial streams, which represent over half of the nation’s wetlands.
In summary, the new regulations narrow federal jurisdiction under the CWA.
Need more information?
Trihydro offers a variety of CWA permitting and compliance services. We are closely monitoring these changes to the CWA’s implementing regulations and can answer questions about how they relate to your projects.