The Trump Administration completed the second step of its two-step dance to replace the controversial 2015 Waters of the United States (“WOTUS) rule when it published the “Navigable Waters Protection Rule (“Step Two Rule”) in the April 21, 2020 issue of the Federal Register. The final rule which was issued jointly by the federal Environmental Protection Agency and Army Corps of Engineers (the “agencies”) becomes effective on June 22, 2020.

The agencies published the so-called Step One rule (the 2019 Rule) on October 22, 2019 (84 Fed.Reg 56626) which  repealed the WOTUS Rule and restored the regulatory text to that which existed prior to WOTUS as an interim matter until the Step Two rule could be finalized.. The 2019 Rule became effective on December 23, 2019.

The Agencies state that the Step Two rule re-defines the scope of waters subject to federal regulation under the Clean Water Act (CWA) in accordance with a string of Supreme Court cases and is consistent with the Executive Order 13778  signed by President Trump on February 28, 2017 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States’ Rule.” The agencies also said that  rule “is intended to ensure that the agencies operate within the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.

In Step Two, the agencies divide the universe of Waters of the United States into two categories: Jurisdictional Waters and Non- Jurisdictional Waters.

33 C.F.R. 328.3(a) of the Step 2 rule identifies the following four categories of waters as Jurisdiction Waters::

  • The territorial seas and traditional navigable waters;
  • perennial and intermittent tributaries that contribute surface water flow to such waters– A “tributary” is defined in the Step Two rule as 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 tributary must be perennial or intermittent in a typical year. The alteration or relocation of a tributary does not modify its jurisdictional status as long as it continues to be perennial or intermittent and contributes surface water flow to a traditional navigable water or territorial sea in a typical year. A tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, through a culvert, dam, tunnel, or other similar artificial feature, or through a debris pile, boulder field, or similar natural feature. The term “tributary” includes a ditch that either relocates a tributary, is constructed in a 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. ;
  • certain lakes, ponds, and impoundments of jurisdictional waters– ; The final rule defines “lakes and ponds, and impoundments of jurisdictional waters” as standing bodies of open water that contribute surface water flow in a typical year to a territorial sea or traditional navigable water either directly or through a tributary, another jurisdictional lake, pond, or impoundment, or an adjacent wetland. The agencies note that to be jurisdictional, an “impoundment of a jurisdictional water” must be an impoundment of a territorial sea or traditional navigable water, tributary, jurisdictional lake or pond, or an adjacent wetland, and must meet the conditions in paragraph (c)(6) of the final rule. A lake, pond, or impoundment of a jurisdictional water does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a culvert, dike, spillway, or similar artificial feature, or through a debris pile, boulder field, or similar natural feature. A lake, pond, or impoundment of a jurisdictional water is also jurisdictional if, in a typical year, it is inundated by flooding from a territorial sea or traditional navigable water, or tributary, or from another jurisdictional lake, pond, or impoundment.
  • wetlands adjacent to other jurisdictional waters- The final rule defines “adjacent wetlands” as wetlands that abut a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water; are inundated by flooding from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water in a typical year; are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by a natural berm, bank, dune, or similar natural feature; or are physically separated from a territorial sea or traditional navigable water, a tributary, or a lake, pond, or impoundment of a jurisdictional water only by an artificial dike, barrier, or similar artificial structure so long as that structure allows for a direct hydrological surface connection to the territorial sea or traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. “Abut” means when a wetland touches a territorial sea, traditional navigable water, tributary, or lake, pond, or impoundment of a jurisdictional water at least at one point or side. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.

Paragraph 33 C.F.R. 328.3(b) identifies those waters and features that are excluded from the definition of “waters of the United States.” These Non-Jurisdictional Waters are all waters or features not mentioned in paragraph (a) and the following 12 specific types of waters:

  • Groundwater, including groundwater drained through subsurface drainage systems;
  • ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, gullies, rills, and pools;
  • diffuse stormwater runoff and directional sheet flow over upland;
  • ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands, subject to certain limitations;
  • prior converted cropland;
  • artificially irrigated areas that would revert to upland if artificial irrigation ceases;
  • artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters;
  • water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity, and pits excavated in upland or in non-jurisdictional waters for the purpose of obtaining fill, sand, or gravel;
  • stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
  • groundwater recharge, water reuse, and wastewater recycling structures constructed or excavated in upland or in non-jurisdictional waters; and
  • waste treatment systems.

In addition, the agencies have defined the terms “upland,” “prior converted cropland,” and “waste treatment system” to improve regulatory predictability and clarity.

Based on a plain reading of the statutory language and the legislative history, it appears that the Step 2 Rule is more faithful to Congressional intent when it enacted the Clean Water Act (“CWA”) in 1972 than WOTUS. That Congress clearly did not contemplate or authorize the federal government to assert jurisdiction over isolated and remote bodies of water. Of course, the 1972 Congress did not have the scientific data about the impact that these water bodies could have on waters that fairly could be considered jurisdictional. However, the answer was not to engage in what amounted to an unconstitutional assertion of federal jurisdiction over isolated and intrastate waters that WOTUS represented. In our Constitutional form of government, the proper approach would have been for the Executive Branch to provide the data to Congress and ask Congress to revise the statute. If Congress disagrees with the narrow interpretation of the scope of waters of the United States adopted by The Trump Administration, it can amend the law.

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