Analysis of EPA Waters of the U.S. Pre-Publication Proposal

On December 11, 2018, the Environmental Protection Agency (EPA) Acting Administrator, Andrew Wheeler and R.D. James, Assistant Secretary of the Army for Civil Works, signed a “pre-publication” of a proposed rule on Waters of the U.S. (WOTUS). EPA will submit it to the Federal Register for publication. Publication will likely occur in a few weeks. While this is not the official version of the rule for public notice and comment under the Administrative Procedures Act, EPA and the Army wanted to publish a document to begin engaging the public on the WOTUS rule.

Click here to download the Revised Definition of “Waters of the United States” Proposed Rule – Pre-publication Version (PDF).

EPA-Army Pre-publication Rooted in SCOTUS Decisions
EPA and the Army’s pre-publication Proposed Rule takes into consideration Supreme Court cases dating back to 1868 when the steam vessel Daniel Ball departed Grand Rapids, Michigan loaded with merchandise and headed to Grand Haven, Michigan by way of the Grand River. The Daniel Ball had not been inspected, nor licensed prior to embarking. The United States filed a libel in the District Court for the Western District of Michigan and in this case the owners of the Daniel Ball established their defense based upon the Grand River not being a navigable water of the United States. The owners argued that the steamer was engaged solely in domestic trade and commerce, and was not engaged in trade or commerce between two or more states or in any trade by reason of which she was subject to the navigation laws of the United States or was required to be inspected and licensed. In the Daniel Ball case, the district court dismissed the libel. However, the circuit court reversed this decision, and gave a decree for the owners to pay the penalty. An appeal was handed to the U.S. Supreme Court that affirmed the circuit court decision based upon the Daniel Ball being engaged in commerce and the Grand River being regarded as a navigable water of the United States.
Over the decades this traditional legal test has expanded to include waters used in the past for interstate commerce. In a 1941 case, Oklahoma ex rel. Phillips v. Guy F. Atkinson, the Supreme Court opined, “Congress may exercise its control over the non-navigable stretches of a river in order to preserve or promote commerce on the navigable portions.” In 1971 (two years before the creation of the EPA and Clean Water Act amendments were enacted) the Supreme Court in Utah v. United States, clarified that Congress could regulate waterways that formed a part of a channel of interstate commerce, even if they are not themselves navigable or do not cross state boundaries.
In the 1985 case United States v Riverside Bayview, Riverside Bayview Homes, Inc. began placing fill materials on its property near the shores of Lake St. Clair, Michigan. The U.S. Army Corps of Engineers filed suit in Federal District Court to stop Bayview from filling its property without the Corps’ permission. EPA’s pre-publication states, “the Supreme Court considered the Corps’ assertion of jurisdiction over “low-lying, marshy land” immediately abutting a water traditionally understood as navigable on the grounds that it was an “adjacent wetland” within the meaning of the Corps’ then existing regulations. The Court addressed the question of whether non-navigable wetlands may be regulated as “waters of the United States” on the basis that they are “adjacent to” navigable-in-fact waters and “inseparably bound up with” them because of their “significant effects on water quality and the aquatic ecosystem.” But in the Bayview decision the SCOTUS also acknowledged the difficulty in determining where the limits of federal jurisdiction end, noting the line is somewhere between open water and dry land. In fact, SCOTUS declined to decide whether wetlands that are not adjacent to navigable waters could also be regulated by the agencies.
More recent court decisions include the 2001 decision in Solid Waste Agency of Northern Cook County, (SWANCC) that, according to EPA’s pre-publication “suggests that Congress had in mind a broader scope of waters subject to Clean Water Act (CWA) jurisdiction than waters traditionally understood as navigable. Thus, Congress intended to assert federal authority over more than just waters traditionally understood as navigable, and Congress rooted that authority in ‘its commerce power over navigation’.”
In the 2006 Rapanos v United States the defendant Rapanos backfilled three (of a total four) wetlands lying near ditches or man-made drains that eventually emptied into traditional navigable waters without securing permits for the discharge of dredged or fill material from the Army Corp of Engineers. The District Court and Sixth Circuit found federal jurisdiction over the wetlands due to their adjacency to “waters of the United States,” and the sites’ hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. The SCOTUS remanded the case for further proceedings because the Sixth Circuit applied an incorrect standard to determine whether the wetlands are covered “waters.”
The SCOTUS has also rejected the argument that the use of abandoned ponds by migratory birds falls within the power of Congress to regulate activities that in the aggregate have a substantial effect on interstate commerce, or that the CWA regulated the use of the ponds as a municipal landfill because such use was commercial in nature. Such arguments, the Court noted, raised “significant constitutional questions. Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result. Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority. This is particularly true where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.”

Definitions
The EPA-Army pre-publication intends “to establish categorical bright lines that provide clarity and predictability for regulators and the regulated community by defining “waters of the United States” to include the following:

  • traditional navigable waters, including the territorial seas;
  • tributaries of such waters;
  • certain ditches;
  • certain lakes and ponds;
  • impoundments of otherwise jurisdictional waters; and
  • wetlands adjacent to other jurisdictional waters.

The agencies propose to eliminate the case-by-case application of significant nexus test, proposing instead the establishment of clear categories of jurisdictional waters that adhere to the basic principles articulated in the (cases above) Riverside Bayview, SWANCC, and Rapanos decisions while respecting the overall structure and function of the CWA.”


Traditional Navigable Waters and Territorial Seas
The proposed definition of “waters of the United States” would encompass traditional navigable waters, including the territorial seas.To streamline and simplify the definition of “waters of the United States,” the agencies propose to include both traditional navigable waters and the territorial seas as a single category of jurisdictional waters.
“Territorial seas” is defined in the CWA (Section 502(8), 33 U.S.C. 1362(8), as “the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.” EPA-Army are requesting comments on whether adding this definition would improve regulatory clarity?
EPA-Army will interpret traditional navigable waters as all waters that are currently defined in the definition of navigable waters (33 CFR part 329), which implements sections 9 and 10 of the Rivers and Harbors Act, and by numerous decisions of the federal courts (highlighted above), as well as all other waters that are “navigable-in-fact.”
The definition of navigable-in-fact originates with the Supreme Court’s decision in the case of the The Daniel Ball (above), 77 U.S. 557 (1870). In that case, the Supreme Court stated:
“Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”

Interstate Waters
The 1986 regulations define “waters of the United States” to include interstate waters, including interstate wetlands. In the pre-publication, EPA-Army propose to remove interstate waters and interstate wetlands as a separate category of “waters of the United States” to more closely align the definition to the constitutional and statutory authorities reflected in the CWA and judicial interpretations of the term “navigable waters,” while balancing the statute’s policy directives to preserve and protect the rights and responsibilities of the States. The agencies are concerned that the regulation of interstate waters is a relic of the original Water Pollution Control Act (WPCA) of 1948 and lacks foundation in statutory text. Moreover in the 1972 CWA amendments Congress selected the term “navigable waters” to frame the scope of federal regulatory jurisdiction and omitted “interstate waters.”
The agencies anticipate that most waters that would be deemed jurisdictional under the existing regulatory definition from the 1980s would likely remain jurisdictional under the pre-publication proposal as they would likely fall within the proposed traditional navigable waters category or one of the other proposed categories, such as tributaries or lakes and ponds. The agencies note that as currently written the pre-publication proposal likely would reduce the number of interstate waters that would be jurisdictional under the 2015 Rule given that rule’s broad interpretation of the term “neighboring” within its “adjacent” definition and its inclusion of ephemeral streams and related features meeting its “tributary” definition.
EPA/Army welcome comments including the rationale for and against having interstate waters as a separate jurisdictional category. Alternatively, the agencies seeks comments on an approach that would retain interstate waters as a separate category. In the event the agencies were to pursue that alternate approach, the agencies solicit comments on which waters should remain jurisdictional and on what basis, and whether the term “interstate” should be interpreted as crossing between States, tribal lands and foreign countries.


Impoundments
EPA/Army do not propose to make any changes to the impoundment category of “waters of the United States” as it existed in the 1986 regulations. Impoundments have historically been determined by the agencies to be jurisdictional because impounding a “water of the United States” generally does not change the water body’s status as a “water of the United States.”


Tributaries
EPA/Army would retain tributaries as a category of jurisdictional waters subject to CWA jurisdiction.
The pre-publication proposal defines “tributary” to mean a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year either directly or indirectly through other jurisdictional waters, such as other tributaries, impoundments, and adjacent wetlands or through water features identified in paragraph (b) of this proposal so long as those water features convey perennial or intermittent flow downstream.
Excluded waters and features in the pre-publication proposal are not tributaries, but certain excluded waters and features may convey perennial or intermittent flow from a tributary to traditional navigable waters or the territorial seas. For example, if a tributary flows into an excluded ditch or a waste treatment system and those excluded features convey perennial or intermittent flow to a tributary downstream, the tributary remains a jurisdictional tributary upstream and downstream of the excluded feature. However, certain excluded waters and features are incapable of providing perennial or intermittent flow as defined in the pre-publication proposal (e.g., ephemeral features) and therefore break jurisdiction upstream of the excluded feature.
Under the proposed definition, a tributary does not lose its status as a jurisdictional tributary if it flows through a culvert, dam, or other similar artificial break or through a debris pile, boulder field, or similar natural break so long as the artificial or natural break conveys perennial or intermittent flow to a tributary or other jurisdictional water at the downstream end of the break. The alteration or relocation of a tributary would not modify its status as a jurisdictional tributary as long as it continues to satisfy the elements of the tributary definition.
Regardless of the name they are given locally (e.g., creek, bayou, branch, brook, run, etc.), or their size (e.g., discharge volume, width, depth, stream order, etc.), waters that meet the definition of “tributary” would be jurisdictional under the pre-publication proposal. However, tributaries as defined in the pre-publication proposal do not include surface features that flow only in direct response to precipitation, such as ephemeral flows, dry washes, arroyos, and similar features. These features lack the required perennial or intermittent flow regimes to satisfy the tributary definition under this proposal and therefore would not be jurisdictional.
The agencies propose to define the term “perennial” to mean surface water flowing continuously year-round during a typical year.
The proposed definition of “intermittent” is surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation, but when the groundwater table is elevated, for example, or when snowpack melts. Continuous surface flow during certain times of the year may occur seasonally such as in the spring when evapotranspiration is low and the groundwater table is elevated. Under these conditions, the groundwater table intersects the channel bed and groundwater provides continuous baseflow for weeks or months at a time even when it is not raining or has not very recently rained.
The term “snowpack” in this definition is proposed as “layers of snow that accumulate over extended periods of time in certain geographic regions and high altitudes (e.g., in northern climes and mountainous regions).” Melting snowpack can be the sole or primary source of perennial or intermittent flow in tributaries. The agencies recognize that perennial or intermittent flow in certain mountain streams, for example, may result primarily from melting snowpack, not groundwater contributions to the channel.
The phrase “certain times of a typical year” is intended to include extended periods of predictable, continuous, seasonal surface flow occurring in the same geographic feature year after year. The agencies are not proposing a specific duration (e.g., the number days, weeks, or months) of surface flow that constitutes intermittent flow as the agencies believe the time period that encompasses intermittent flow can vary widely across the country based upon climate, hydrology, topography, soils, and other conditions.
“Typical year” is defined in the proposed rule to mean within the normal range of precipitation over a rolling thirty-year period for a particular geographic area. Under this proposed definition, a typical year would generally not include times of drought or extreme flooding.
The term “ephemeral” in the proposal means surface water flowing or pooling only in direct response to precipitation, such as rain or snow fall. The agencies intend to distinguish flow resulting from snow fall from sustained flow resulting from melting snowpack in these definitions.
Under the proposed rule a tributary must contribute perennial or intermittent flow to a traditional navigable water or territorial sea in typical year. Perennial or intermittent flow would require some form of discrete and confined flow (as opposed to diffuse overland flow) forming geographic features such as rivers, streams, or similar naturally occurring surface water channels. A tributary may contribute perennial or intermittent flow to downstream traditional navigable waters through, for example, lakes, impoundments, adjacent wetlands, or other tributaries.
Under the proposed rule, when a tributary flows through a wetland and into another tributary (sometimes called a “run-of-stream” wetland), the tributary would remain jurisdictional even though it may be difficult to identify channelized flow through the wetland. Similarly, such a wetland would be considered “adjacent” and thus jurisdictional under today’s proposal given the wetland abuts (i.e., touches at a point in this case) the tributary.
In the case of a perennial or intermittent stream which flows through ditches excluded from the pre-publication proposed definition of “waters of the United States,” the non-jurisdictional ditches would not sever jurisdiction under the proposed rule as long as the ditches convey perennial or intermittent flow to tributaries or other jurisdictional waters at the downstream end of the ditch.
However, a perennial or intermittent stream that flows into a non-jurisdictional ephemeral feature would not meet the definition of “tributary” if the perennial or intermittent flow does not reach a traditional navigable water or territorial sea; the ephemeral feature would sever jurisdiction for such perennial and intermittent streams as it does not convey surface water year-round or continuously for extended periods of time to a traditional navigable water or territorial sea.
Under the pre-publication proposal, tributaries could have certain natural breaks (such as debris piles, boulder fields, or subterranean rivers) or man-made breaks (such as bridges, culverts, pipes, or dams) and remain a tributary. A tributary does not lose its status as a tributary according to today’s proposal if it flows through a natural or man-made break so long as the break conveys perennial or intermittent flow to a tributary or other jurisdictional water at the downstream end of the break. To implement the proposed tributary definition, the agencies would consider the upstream extent of a tributary to be the point at which the feature ceases to contribute perennial or intermittent flow to a traditional navigable water or territorial sea.
The alteration or relocation of a tributary would not modify its status under the proposed definition of tributary as long as it continues to satisfy the elements of the definition. The agencies’ longstanding interpretation of the CWA is that tributaries that are modified waters are jurisdictional, and the agencies are not proposing to change this interpretation.
If a tributary is channelized, its bed and/or banks are altered in some way, or it is re-routed or its flow regime is modified, then it would remain jurisdictional under the proposed rule as long as it continues to meet the definition of “tributary.” For example, streams that have been channelized with hardened banks or otherwise modified may still meet the definition of “tributary” under the proposal.
EPA/Army welcome comments on their interpretation of the Rapanos opinions and whether the significant nexus standard must be a mandatory component of any future definition of “waters of the United States. Or, may the agencies apply the principles and rationale of the plurality and concurring opinions to craft a new standard established by rule?
The agencies also solicit comment on whether the definition of “tributary” should be limited to perennial waters only.
The agencies also request comment whether the definition of “tributary” as proposed should indicate that the flow originate from a particular source, such as a requirement for groundwater interface, snowpack, or lower stream orders that contribute flow.
The agencies also solicit comment on how effluent-dependent streams (e.g., streams that flow year-round based on wastewater treatment plant discharges) should be treated under the tributary definition. As proposed, effluent-dependent streams would be included in the definition of “tributary” as long as they contribute perennial or intermittent flow to a traditional navigable water or territorial sea in a typical year.
The agencies recognize that the proposed definition may present a challenge for certain landowners upstream of an ephemeral feature. For example, landowners may find it difficult to determine whether there is a jurisdictional break downstream of a feature on their property. The agencies therefore solicit comment on this issue.
The agencies are also soliciting comment on an alternate definition that would change the focus of the proposed definition from intermittent flow occurring during certain times of the year to “seasonal flow.” Under this alternative definition, a tributary would be a river, stream, or similar naturally occurring surface water channel that contributes flow at least seasonally to a traditional navigable water or territorial sea in a typical year. The alternate definition could add that “seasonal flow is predictable, continuous surface flow that generally occurs at the same time in a typical year.”

Ditches
EPA/Army propose to add a new category to the definition of “waters of the United States” to provide regulatory clarity and predictability regarding the regulation of ditches and similar artificial features.
The regulatory status of ditches has long created confusion for farmers, ranchers, irrigation districts, municipalities, water supply and stormwater management agencies, and the transportation sector, among others. In an effort to reduce that confusion, the agencies propose to delineate the categories of ditches that would be “waters of the United States,” and are proposing to exclude all other ditches from that definition.
The agencies also propose to define ditches for purposes of the pre-publication proposal as simply artificial channels used to convey water.
Ditches perform a variety of functions including conveying irrigation water, draining water from farm fields, capturing runoff from roads, or use for transporting goods and services in interstate or foreign commerce, such as the Erie Canal and the Great Lakes Waterway. The status of ditches as “point sources” under the CWA, 33 U.S.C. 1362(14), would not be affected by the pre-publication proposal. One of the goals of our proposal is to address the confusion regarding whether ditches are point sources or “waters of the United States” more generally, and to provide clear categories for regulators and the regulated community for distinguishing between the two.
Ditches included as “waters of the United States:”
(1) satisfy any of the conditions identified in paragraph (a)(1) of this proposed rule;
(2) are ditches constructed in a tributary as defined in paragraph (c)(11) of the proposal as long as those ditches also satisfy the conditions of the tributary definition; or
(3) are ditches constructed in an adjacent wetland as defined in paragraph (c)(1) of the proposal as long as those ditches also satisfy the conditions of the tributary definition. The agencies propose to exclude all other ditches from the definition of “waters of the United States.” Ditches not covered by this proposed category could still be regulated by States and Tribes and would be subject to CWA permitting if they meet the definition of “point source” in CWA section 502(14).
As the Army Corps of Engineers explained in 1977: “nontidal drainage and irrigation ditches that feed into navigable waters will not be considered ‘waters of the United States’ under this definition. To the extent that these activities cause water quality problems, they will be handled under other programs of the FWPCA, including Section 208 and 402.” 42 FR at 37127 (July 19, 1977). Similar statements in proposed rules from the early 1980s confirmed this interpretation: “man-made, non-tidal drainage and irrigation ditches excavated on dry land are not considered waters of the United States.”

Lakes and Ponds
For the purposes of this section the following is required:
33 CFR 328.3
(a) For purposes of the Clean Water Act and its implementing regulations, the term “waters of the United States” means:
(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;(2) All interstate waters, including interstate wetlands;(3) The territorial seas;(4) All impoundments of waters otherwise identified as waters of the United States under this section;(5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section;(6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;(7) All waters in paragraphs (a)(7)(i) through (v) of this section where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs (a)(7)(i) through (v) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required.
In the pre-publication EPA/Army are proposing three instances where lakes and ponds would meet the definition of “waters of the United States.”
First, lakes and ponds that satisfy any of the conditions in paragraph (a)(1) are proposed to be included. Such lakes and ponds would be jurisdictional as an (a)(1) water, as well as an (a)(4) water.
Second, lakes and ponds that contribute perennial or intermittent flow to an (a)(1) water in a typical year through an (a)(2)-(6) water would also be considered waters of the United States. This second category of lakes and ponds can contribute flow to an (a)(1) water either directly or through a tributary, jurisdictional ditch, another jurisdictional lake or pond, an impoundment, an adjacent wetland, or through a combination of these waters. The contribution of perennial or intermittent flow to an (a)(1) water from such lakes and ponds may also occur through water features identified in paragraph (b) of this proposal so long as those water features convey perennial or intermittent flow downstream and ultimately to an (a)(1) water. The term “typical year” as used in the proposed lakes and ponds category of “waters of the United States” would be implemented using the proposed definition of the term in paragraph (c)(12).
Third, the agencies propose that lakes and ponds flooded by an (a)(1)-(5) water in a typical year would be waters of the United States. These lakes and ponds would receive flood waters from (a)(1)-(5) waters via overtopping in a typical year.

Wetlands
EPA/Army are proposing a category of “waters of the United States” to include all adjacent wetlands to:

  • traditional navigable waters, including the territorial seas;
  • tributaries to those waters;
  • jurisdictional ditches;
  • jurisdictional lakes and ponds; and
  • impoundments of otherwise jurisdictional waters.

The agencies propose to maintain their longstanding regulatory definition of “wetlands” to mean “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.” The presence and boundaries of wetlands are determined based upon an area satisfying all three of the definition’s criteria (i.e., hydrology, hydrophytic vegetation, and hydric soils) under normal circumstances.
The agencies propose to define the term “adjacent wetlands” to mean wetlands that abut or have a direct hydrologic surface connection to other “waters of the United States” in a typical year. “Abut” is proposed to mean when a wetland touches a water of the United States at either a point or side. A “direct hydrologic surface connection” as proposed occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water.
When wetlands are physically separated from jurisdictional waters by upland or by dikes, barriers, or similar structures and also lack a direct hydrologic surface connection to jurisdictional waters, those wetlands are not adjacent.
Upland” in the proposed rule refers to any land area above the ordinary high water mark or high tide line that does not satisfy all three wetland delineation factors (i.e., hydrology, hydrophytic vegetation, and hydric soils).
“Typical year” means within the normal range of precipitation over a rolling 30-year period for a particular geographic area.
EPA/Army have proposed a number of ways to try to address and clarify jurisdiction over wetlands as highlighted above. the agencies welcome comments on, as a threshold matter, their proposal to provide regulatory certainty through categorical treatment of adjacent wetlands rather than on the case-by-case application of significant nexus test. While the agencies are not proposing to change the longstanding regulatory definition of “wetlands,” they request comment on whether including in the regulatory text that areas must satisfy all three wetland delineation criteria (i.e., hydrology, hydrophytic vegetation, and hydric soils) will be helpful in providing more clarity.

Waters & Features That ARE NOT Waters of the U.S.
EPA/Army are proposing 11 exclusions from the definition of “waters of the United States.”
Specifically, under the pre-publication proposal, any water not enumerated in paragraphs (a)(1) through (6) would not be a water of the United States.
The pre-publication proposal would exclude groundwater, including groundwater drained through subsurface drainage systems.
It would also exclude ephemeral surface features and diffuse stormwater run-off such as directional sheet flow over upland.
This pre-publication proposal would exclude all ditches from the definition of “waters of the United States” except those ditches identified earlier.
Jurisdictional ditches identified include: (1) ditches that satisfy any of the conditions identified in paragraph (a)(1); (2) ditches constructed in a tributary as long as those ditches also satisfy the conditions of the tributary definition; and (3) ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition. All other ditches are proposed to be excluded.
Prior converted cropland has been excluded from this definition since 1993 and would continue to be excluded. The agencies include in the proposed rule a definition of “prior converted cropland” and an explanation of when a prior converted cropland designation would no longer be applicable for purposes of the CWA.
The agencies also propose to exclude artificially irrigated areas, including fields flooded for rice or cranberry growing, that would propose to exclude artificial lakes and ponds constructed in upland, such as water storage reservoirs, farm and stock watering ponds, settling basins, and log cleaning ponds, as long as they are not subject to jurisdiction under either paragraph (a)(4) or (a)(5) of the proposed rule.
The proposed rule would also exclude water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand, or gravel.
The agencies also propose to exclude stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.
Also proposed to be excluded are wastewater recycling structures constructed in upland, such as detention, retention and infiltration basins and ponds, and groundwater recharge basins.
Waste treatment systems have been excluded from this definition since 1979, and they would continue to be excluded under this proposal; however, waste treatment systems are being defined for the first time in this proposed rule under paragraph (c). A waste treatment system would include all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge). A waste treatment system requires a section 402 permit if it discharges into a water of the United States.
The following features also would not be “waters of the United States” under this proposed rule:

  • Artificially irrigated areas, including fields flooded for rice or cranberry growing, that would revert to upland should application of irrigation water to that area cease;
  • Artificial lakes and ponds constructed in upland (including water storage reservoirs, farm and stock watering ponds, settling basins, and log cleaning ponds) which are not identified in paragraph (a)(4) or (a)(5); and
  • Water-filled depressions created in upland incidental to mining or construction activity, and pits excavated in upland for the purpose of obtaining fill, sand or gravel.

Additional Background (from the South Carolina Coastal Conservation League, et. al. v. Pruitt, Injunction 2:18-cv-00330-DCN, (D.S.C. August 16, 2018). )
This case arises out of the promulgation of a rule (“the Suspension Rule”) that suspends the 2015 Clean Water Rule (“the WOTUS rule”) for two years. The Clean Water Act (“the Act”) prohibits discharge of pollutants from a point source into “navigable waters” without a permit. 33 U.S.C. §§ 1311(a), 1342, 1344, 1362(12). The Act defines “navigable waters” as “waters of the United States, including the territorial seas” but does not define what constitutes “waters of the United States.” In 1980, the Environmental Protection Agency (“the EPA”), and in 1982, the Army Corps of Engineers (“the Army Corps”) (together, “the agencies”), issued a regulation that defined the term “waters of the United States,” (hereinafter, “the 1980s regulation”). Under the 1980s regulation, the term “water s of the United States” included interstate waters, such as interstate wetlands, “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,” and wetlands adjacent to these waters. The 1980s regulation specifically excluded “waters that are themselves wetlands ” as a “waters of the United States.”   On August 28, 2015, the EPA and the Army Corps enacted the WOTUS rule to clarify what types of waters constitute a “waters of the United States” and are thus covered by the Act. The WOTUS rule replaced the 1980s regulation and includes seasonal streams, wetlands, and tributaries as a “water of the United States.” Soon after its enactment, the WOTUS rule became embroiled in litigation, with cases being brought in district courts across the country, including the Southern District of Texas (“the Texas litigation”). The government petitioned the Judicial Panel on Multi-District Litigation to consolidate these district court actions, which the Panel denied in October 2015.   All of the challenges to the district court decisions regarding the WOTUS rule were consolidated in the Sixth Circuit. In February 2016, the Sixth Circuit ruled that it had original jurisdiction over challenges to the WOTUS rule and issued a nationwide stay of the rule. At the time that the Sixth Circuit issued its nationwide stay of the WOTUS rule, the District of North Dakota had issued a preliminary injunction against the WOTUS rule effective in thirteen states. As a result of this ruling by the Sixth Circuit, the pending district court cases were either stayed or administratively closed. On January 22, 2018, the United States Supreme Court ruled that the circuit courts did not have original jurisdiction to review the WOTUS rule, and that challenges must continue to be filed in the district courts. The Sixth Circuit then vacated the nationwide stay of the WOTUS rule. The injunction against the WOTUS rule issued by the District of North Dakota stayed in place.   On February 28, 2017, President Donald Trump issued Executive Order 13778 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” which directed Pruitt, the Administrator of the EPA, and Fischer, the Assistant Secretary of the Army for Civil Works, to “review the . . . [WOTUS rule] . . . for consistency with . . . [administration] policy . . . and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with [the] law.” On February 6, 2018, the Suspension Rule was published in the Federal Register. The effect of the Suspension Rule to delay the WOTUS rule until 2020, and in the interim period the controlling interpretation of “waters of the United States” was that prescribed by the 1980s regulation which had been in place prior to the WOTUS rule.   On the same day that the Suspension Rule went into effect, environmental plaintiffs filed suit against the manner in which the Suspension Rule was enacted. Environmental plaintiffs allege the following claims: (1) in promulgating the Suspension Rule, the EPA and Army Corps violated the Administrative Procedure Act (“APA”) by taking action with inadequate public notice and comment as prescribed by the APA; (2) the government’s failure to consider the substantive implications of suspending the WOTUS rule in enacting the Suspension Rule was arbitrary and capricious under the APA, which directs federal agencies to “examine the relevant data and articulate . . . satisfactory explanation[s] for . . . [their] action[s]”; and (3) the government’s failure after enacting the Suspension Rule to restore the 1980s regulation to the Federal Register violates the APA, which requires federal agencies to publish the language of any substantive regulation that they intend to have legal effect. Environmental plaintiffs ask the court to declare that the EPA and the Army Corps acted arbitrarily and unlawfully in promulgating the Suspension Rule, and to vacate the Suspension Rule.


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