EPA and U.S. Army Corps of Engineers Issue a Prepublication Version of their Rule Redefining “Waters of the United States”

The 2020 Final Rule is significantly different than its predecessor, as graphically illustrated by EPA in supporting materials it issued along with the prepublication version. The 2020 Final Rule relies heavily on legal principles derived from the Clean Water Act’s text, legislative history, and Supreme Court interpretations. This approach differs from the 2015 Rule, which was based on the “Connectivity Report,” a scientific literature review asserting that hydrological connections between different categories of waters, wetlands and typically dry lands justified an expansive interpretation of federal jurisdiction. The 2020 Final Rule takes a more restrictive view, seeking to protect water quality “in a manner that preserves the traditional sovereignty of States over their own land and water resources.” Notably, the 2020 Final Rule is intended to “operate within the scope of” Congress’ Commerce Clause powers instead of “push[ing] the envelope of the agencies’ constitutional and statutory authority in the absence of a clear statement from Congress authorizing substantial encroachment upon traditional State land-use planning authority,” as the 2015 Rule did. While the 2020 Final Rule does not necessarily reject the Connectivity Report, it “recognizes that science cannot dictate where to draw the line between Federal and State waters, as this is a legal question….”

Given the high likelihood of litigation concerning the 2020 Final Rule in district courts across the country, including potentially motions to stay the effectiveness of the rule, together with the existing patchwork quilt of jurisdictional decisions that ensued from litigation over the 2015 Rule, it may take considerable time (and even Supreme Court action) for a uniform approach to be in place nationally.

What’s In

Most categories of jurisdictional waters in the 2020 Final Rule are not controversial: territorial seas, traditionally navigable waters, perennial and intermittent streams and their tributaries, lakes, ponds, and impoundments of jurisdictional waters, and wetlands “adjacent” to jurisdictional waters. The 2020 Final Rule, however, adds some new conditions to establish jurisdiction.

Tributaries are only jurisdictional where they have perennial or intermittent flow to a jurisdictional water “in a typical year.” This is a frequently used term for evaluating federal jurisdiction in the 2020 Final Rule and is defined as “precipitation and other climactic variables … within the normal periodic range (e.g., seasonally, annually) for the geographic area … based on a rolling thirty-year period.” These “other climactic variables,” a term added in response to comments on the proposed rule, include any other factor that influences stream flow.

In evaluating tributary jurisdiction, the 2020 Final Rule emphasizes the need for a regular surface flow to a jurisdictional water, regardless of how water gets there. For instance, if a perennial tributary contributes water to a jurisdictional water (be it a traditionally navigable water, lake, pond, or other category), it does not affect jurisdiction if the water flows through a pump, culvert, or other artificial or natural barrier. Jurisdiction cannot be established through groundwater, but it may be established through an artificial or natural underground tunnel. This contribution, however, cannot be ephemeral, meaning that the flow must be relatively permanent, or at least seasonal, in a typical year.

For wetlands, the 2020 Final Rule limits jurisdiction to “adjacent” wetlands, meaning that they “abut” a jurisdictional water. Although a natural or artificial feature, such as a bank or ditch, may separate the wetland from the jurisdictional water, the 2020 Final Rule still requires that the “wetland touches” the jurisdictional water “at least at one point or side.” This means that the jurisdictional water must contribute at least some surface flow to the wetland, and unlike with tributaries, this flow may be ephemeral. For example, inundation after a single rainfall event will provide jurisdiction.

The 2020 Final Rule also recognizes a second class of “adjacent wetlands” that may be separated by a natural (but not artificial) barrier as these are presumed to have “a sufficient hydrologic surface connection” to satisfy the Supreme Court’s test for jurisdiction in United States v. Riverside Bayview Homes.

What’s Out

The “significant nexus” test is out. Although the 2020 Final Rule goes to considerable length in identifying common concepts between Justice Anthony Kennedy’s concurrence in Rapanos and the plurality opinion, the agencies eliminated “the multi-factored case-specific significant nexus analysis with categorically jurisdictional and categorically excluded waters” to provide greater clarity.

The 2020 Final Rule excludes groundwater, and bodies of water connected to jurisdictional waters via groundwater, from Clean Water Act jurisdiction. However, this may not make a significant impact on lawsuits alleging that discharges of pollutants into a jurisdictional water through groundwater are prohibited under the Clean Water Act, including County of Maui, Hawaii v. Hawaii Wildlife Fund, currently being considered by the Supreme Court. Thus, the somewhat different question of whether the Clean Water Act prohibits discharging pollutants through groundwater to a jurisdictional water will still be settled by the Supreme Court, not EPA and the Corps.

Ephemeral streams, defined by the 2020 Final Rule as flow from rain events or snow melt, are excluded from Clean Water Act jurisdiction. The agencies distinguish between non-jurisdictional ephemeral streams and jurisdictional intermittent streams based on the regularity of the flow. For instance, where a seasonal stream typically channels melting snowpack or elevated groundwater each spring, it would be a jurisdictional stream. However, a channel that carries water for only a few days after a single snowfall would be ephemeral.

“Neighboring” waters, as they were defined in the 2015 Rule, are not jurisdictional. A “neighboring” water was incorporated into the 2015 Rule’s definition of “adjacent” and included any water within 100 feet of a jurisdictional water, within a 100-year flood plain (but not more than 1,500 feet from a jurisdictional water), within 1,500 feet of the high-tide line of certain waters, and all waters within 1,500 feet of the high water mark of the Great Lakes. Courts preliminarily enjoined the 2015 Rule, in part, because EPA and the Corps failed to give sufficient notice of these quantitative measurements. In the 2020 Final Rule, EPA and the Corps eliminated the “neighboring” waters language from the definition of “adjacent,” stating that the quantitative measurements lacked record support.

The 2003 and 2008 EPA guidance documents interpreting the current Clean Water Act regulations (meaning those reinstated by the October 2019 “Step One” rule) will become defunct upon the effective date of the 2020 Final Rule. In fact, all EPA and Corps guidance documents interpreting the agencies’ prior Clean Water Act regulations will be rescinded.

What’s Next

The 2020 Final Rule will become effective 60 days after its publication in the Federal Register. When that will be, however, is difficult to tell. Nearly six weeks elapsed between the agencies’ release of the prepublication version of the “Step One” Rule and its publication in the Federal Register.

Advocacy groups and others are certain to challenge the 2020 Final Rule and may seek a preliminary injunction to block it from becoming effective during the litigation. That litigation, however, will be more complicated than typical rule challenges. The Supreme Court, in National Association of Manufacturers v. Department of Defense, held that Clean Water Act rules such as the 2020 Final Rule can be challenged in any U.S. District Court. This holding allows for both forum shopping and multiple challenges filed around the country, as happened in challenges to the 2015 Rule. If the litigation over the 2015 Rule is any indication, the 2020 Final Rule could be stayed in some parts of the country and effective in others while the various parties appeal the divergent district court rulings. Given the prospect for circuit splits, the Supreme Court may be the last word on the 2020 Final Rule.