[July 27, 2017: The proposed rule has been published today’s Federal Register. Comments are due August 28, 2017.]

[July 21, 2017 Update: If you’ve been checking the Federal Register each day you may already know that, surprisingly, this rule has not yet been published.]

On June 27, 2017 the U.S. Environmental Protection Agency (EPA) posted the pre-publication version of their pending Proposed Rule entitled: “Definition of ‘Waters of the United States’ – Recodification of Pre-existing Rules.”  Here’s an extremely brief summary of what has led up to this rule and a short summary of what it proposes to do.

The definition of the term “waters of the United States” — or “WOTUS” for short — has been the subject of much litigation over the years. Its definition determines if a private party needs U.S. Government permission (in the form of a permit issued by the U.S. Army Corps of Engineers) to impact wet areas on their property. The term is used to define “navigable waters” in federal law.

On one end of the spectrum there are traditionally navigable waters used for interstate commerce. These are unquestionably WOTUS.

In the middle of the spectrum there are wetlands adjacent to navigable waters. There are tributaries of navigable waters. There are tributaries of tributaries of navigable waters. There are even wetlands adjacent to these various types of tributaries.

On the other end of the spectrum there are small, isolated areas of standing water, soils, and vegetation (true wetlands) located far away from any navigable waterway.

Which of these is subject to Federal regulation?

That question has been addressed by U.S. Supreme Court cases, EPA Guidance, and regulations. These may be summarized and simplified as follows:

• Riverside (1985): Wetlands adjacent to a navigable water are WOTUS.
• Solid Waste Authority of Northern Cook County  (SWANCC) (2001): Isolated wetlands used by migratory birds (thus triggering an intrastate commerce activity) are NOT sufficient to make an isolated wetlands a WOTUS. A “significant nexus” between the isolated water and a navigable waterway is required for waters to be WOTUS.
• Rapanos (2006): Relatively permanent, standing or continuously flowing bodies of water, that are connected to traditional navigable waters as well as wetlands with a continuous surface connection to such water bodies are WOTUS. Also aquatic features or wetlands must have a “significant nexus” to a WOTUS to be considered a WOTUS. In practice, this made most isolated wetlands, those not adjacent or abutting a navigable water, those not in the floodplain of a waterway, and those not a tributary of a navigable water, typically NOT WOTUS.
• Final Clean Water Rule (2015): Created a prescriptive “significant nexus” test that had the effect of making many isolated wetlands WOTUS.

U.S. Supreme Court AT THE TIME OF THE RAPANOS DECISION (2006).

The Trump administration views the Clean Water Rule as inappropriately extending federal jurisdiction to wetlands and aquatic resources beyond those that would be regulated under the Rapanos decision and associated guidance. This view has led to the proposed rule that was just released. Quoting from the pre-publication Federal Register text:

In this proposed rule, the agencies would rescind the 2015 Clean Water Rule and replace it with a recodification of the regulatory text that governed the legal regime prior to the 2015 Clean Water Rule and that the agencies are currently implementing under the court stay, informed by applicable guidance documents (e.g., the 2003 and 2008 guidance documents, as well as relevant memoranda and regulatory guidance letters), and consistent with the SWANCC and Rapanos Supreme Court decisions, applicable case law, and longstanding agency practice. The proposal retains exclusions from the definition of “waters of the United States” for prior converted cropland and waste treatment systems, both of which existed before the 2015 regulations were issued. Nothing in this proposed rule restricts the ability of States to protect waters within their boundaries by defining the scope of waters regulated under State law more broadly than the federal law definition.

Once the proposed rule is published in the Federal Register the public will have 30 days to submit comments. I’ll update this post with a link to the docket when it becomes available.

[July 27, 2017: The proposed rule has been published today’s Federal Register. Comments are due August 28, 2017.]

[July 21, 2017 Update: If you’ve been checking the Federal Register each day you may already know that, surprisingly, this rule has not yet been published.]