On December 11, 2018, the Environmental Protection Agency and the United States Corps of Engineers (the agencies), seeking as a matter of policy to avoid continuing regulatory confusion over wetlands, unveiled their latest “Waters of the United States” (WOTUS) proposed rule. This is but another step in the Trump administration’s rolling back the scope of waters covered under the Clean Water Act (CWA), 33 U.S.C. § 1344, in particular, as well as in other water programs.

The root problem area being addressed is not mainly drinking water but land use control. Though the transition between land and water is gradual, how much land can legitimately be considered water? Historically, the agencies said there was no such thing as a bad ditch, and they used ditches to tether and “fold space” for broad regulatory jurisdiction between a geographically remote wetland and a navigable water of the U.S. that is miles away.

In this regulatory step, the agencies posit a number of key principles that will go before the Office of Management and Budget and then the federal register as a proposed rule. The agencies also ask in the proposal for public comments on all of the proposed principles, discussed below. In other words, we have a way to go before the proposed rule becomes final in the midst of many lawsuits on the expansive 2015 version of the WOTUS rule (now stayed in most states) and facing future legal challenges as well. 

Recall the 2015 WOTUS rule (still at 33 C.F.R. 328) expanded CWA jurisdictional waters to include wetlands adjacent to other jurisdictional waters; “adjacent” here included a separation by barriers like berms, roads, etc. That rule covered as well wetlands having a vague “significant nexus” (Rapanos v. U.S., 126 S.Ct. 2208 [2006]), per Justice Kennedy, to other jurisdictional waters. Ditches classed as tributaries by the agencies often provided the link between wetlands and other jurisdictional waters, but significant nexus spread jurisdiction further, to isolated wetlands. 

The new proposal alters key terms like tributaries and adjacent and eliminates a significant nexus test, thus probably narrowing but not eliminating wetland jurisdiction. This logically means less federal interference in land use decisions by developers, farmers, etc., and less 404 permit red tape, including fewer mitigation fees. What jurisdictional waters are proposed now?

First, waters currently used, used in the past, or susceptible for use in interstate or foreign commerce are in, as are waters subject to the ebb and flow of the tide. This is not a change. This could include some ditches, lakes, and ponds that have these characteristics.

Second, tributaries of those waters are in, but only if they have a natural channel that has perennial (year-round) or intermittent (continuously at certain times of the year other than only by precipitation) flow, directly or indirectly into other jurisdictional waters. A tributary does not lose its regulated status by a break in its flow by a culvert or dam or boulders as long as its same flow continues to another jurisdictional water. This is a significant change and favors Justice Scalia’s approach in Rapanos. This could also include some lakes and ponds with perennial or intermittent flows to jurisdictional waters.

Third, ditches are artificial channels that are out, unless they are or were navigable in fact, tidal, or replaced or altered a tributary. This is a significant narrowing, as the corps historically considered all ditches to be tributaries, including more sweeping adjacent wetlands being covered. Most ditches can now be “point sources” of pollution only under the CWA.

Fourth, wetlands that have three characteristics of hydrology, aquatic or semiaquatic vegetation, and hydric soils at least under “normal circumstances” are in (not a change), but only if they are adjacent to other jurisdictional waters. “Adjacent” now means abutting, not just the overly broad “neighboring” of the 2015 WOTUS rule. Breaks like levees and berms between the wetland and other jurisdictional waters eliminate adjacency in the proposal. This is significant narrowing. The vague Rapanos significant nexus test is also rejected in the proposed rule.

Fifth, impoundments such as dams and perennial rivers that form lakes and ponds are in.

The agencies admit that the CWA covers more than traditionally navigable waters and also includes most tributaries and adjacent wetlands. After all, the focus of the CWA is on protecting the traditional navigable waters of the U.S., but that protection does not end at imaginary lines (mean higher high water line for coastal waters or ordinary high water mark for inland rivers). Protecting flowing tributaries and adjacent wetlands serves to protect the channels of commerce under the commerce clause. That reach does not extend speculatively to all waters with a “connectivity gradient” to jurisdictional waters. States and Indian tribes may regulate the rest. 

However, the proposal also includes exemptions for groundwater, ephemeral flows, most ditches, prior converted cropland, artificially irrigated areas, most artificial lakes and ponds, water-filled depressions, stormwater control features, wastewater recycling structures, water treatment systems, and possibly most interstate waters.

After over 40 years of rules, agency memos and guidance, and litigation, will the agencies ever get it right? More crucial than the rules themselves are the regulators, who may make mountains out of molehills, as the new proposal is still vague in spots. What is the duration of intermittent? Natural breaks? Normal circumstances? Will “significant nexus” or “interstate waters” come back? The agencies welcome comments on these concepts.