By: Blair M. Gardner
The Environmental Protection Agency and Corps of Engineers delivered their long-awaited definition of “waters of the United States” (WOTUS) on December 11. The pre-publication version of the rule released on that day marks the beginning of the end of one the most contentious issues in the history of American environmental law. The new definition will “encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters [by] . . . having a direct hydrologic surface connection to those waters.” In proposing the definition, the agencies have largely adopted criteria expressed by a plurality of the Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006).
In the definition, the agencies are adhering to a concept that bases its authority to regulate waters in the Commerce Clause. The language it uses – “waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce . . .” – has been utilized since at least the 1970’s. 33 CFR § 328.3(a)(1). The principles that limit the scope of the definition are found in two other definitions for the words “tributary” and “ditch”. A “tributary means a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a water identified in paragraph (a)(1) of this section in a typical year either directly or indirectly . . .” 33 CFR § 328.3(c)(11). A “ditch” is simply an artificial channel that conveys water.
The key to the new definition is the limitation that the contribution of water is a surface flow that is perennial or intermittent. Seasonal flows that result from snowpack, as frequently occurs in the Western U.S., will likely constitute jurisdictional waters. The ephemeral flow of water that results from rainfall, however, will not result in a channel being characterized as a jurisdictional water. The key determinant will be a flow that arises from a water table as opposed to precipitation. A ditch and a natural tributary must each function similarly to move relatively permanent surface flows before they will be considered jurisdictional streams.
Although the limitations imposed under the new definitions may seem modest, they are highly significant. Surface mine operators have observed that the reach of jurisdictional waters has increased nearly to the top of ridges. This has not only restricted the placement of excess spoil into ephemeral drainages, but it has also resulted in increased mitigation payments for the use of these features for spoil placement. Likewise, in Indiana, the status of agricultural ditches used to drain fields now must contribute perennial type flows to natural watercourses before they can be regulated under the Clean Water Act.
The rule also clearly articulates the principle that the States traditionally exercise and retain “primary power over land and water use.” Solid Waste Authority of Northern Cook County v. United States, 531 U.S. 159, 174 (2001). The preamble to the rule makes clear that nothing proposed in the rule limits the authority of a State to exercise its inherent authority to regulate the surface and groundwater within its borders. Accordingly, features over which EPA has abjured jurisdiction may still be regulated by a State.
The environmental community will undoubtedly oppose and challenge the rule. A final review by the U.S Supreme Court seems probable. Nevertheless, for farmers and ranchers, mining companies, and developers, the clarity expressed by the proposed rule is long overdue.