The WOTUS Saga’s Next Chapter: The Navigable Waters Protection Rule

by Nathan Vassar and Lauren Thomas

The early 2020 release of the pre-published version of the Navigable Water Protection Rule is the latest chapter in an ongoing regulatory tug-of-war over which waters are subject to federal oversight. This Administration’s repeal-and-replace WOTUS effort began more than three years ago, when President Trump signed Executive Order 13778, requiring the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“ACE”) (collectively “the agencies”) to rescind and revise the Obama Administration’s 2015 Waters of the United States (“WOTUS”) Rule.1 The agencies’ repeal of the 2015 WOTUS Rule went final in December 2019.2 On January 23, 2020, the agencies released the pre-publication version of the replacement version, now styled not as WOTUS, but as the Navigable Waters Protection Rule (the “Rule”).3 After the Rule is published in the Federal Register (the rule publication is still pending as of March 25, 2020), it will become final 60 days from the date of publication.

The Rule delineates Clean Water Act jurisdiction using four categories: (1) the territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters.4 In addition, the Rule adds to the list of existing features that are excluded from WOTUS jurisdiction, including: (1) ephemeral features; (2) diffuse stormwater run-off and directional sheet flow over upland; (3) ditches that are not traditional navigable waters or tributaries; and an interesting catchall, (4) waters or water features that do not fall under the four jurisdictional WOTUS categories.5 Groundwater remains non-jurisdictional.

Among greatest interest to much of the regulated community is the Rule’s categorical exclusion of ephemeral streams. To that end, the Rule adds several key definitions to the existing WOTUS statutory scheme that largely influence WOTUS jurisdiction. The Rule defines a “tributary” as perennial or intermittent in a typical year.6 The Rule also defines, for the first time, the terms perennial, intermittent, and ephemeral. “Perennial” is surface water flowing continuously year-round.7 “Intermittent” is “surface water flowing continuously during certain times of the year and more than in direct response to precipitation (e.g., seasonally when the groundwater table is elevated or when snowpack melts).”8 “Ephemeral” is “surface water flowing or pooling only in direct response to precipitation.”9 It is important to note that, despite the new definition of ephemeral streams, effluent-dependent streams (that would otherwise be ephemeral without a wastewater discharge) remain jurisdictional, as the Rule doesn’t analyze streams in hypothetical scenarios, but stream flow as it exists, which includes effluent contributions.

Importantly, the Rule narrows the scope of “adjacent wetlands,” which will have an impact on Clean Water Act Section 404 permitting. The Rule defines “adjacent wetlands” to include all wetlands that abut (i.e. touch at least one point or side of) a territorial sea or traditional navigable water, tributary, or lake, impoundment, or jurisdictional water.10 Wetlands no longer are deemed adjacent and jurisdictional if their only adjacency to water is to another wetland.11

Although the replacement chapter effort is just beginning, the overall history of the WOTUS rule (which includes U.S. Supreme Court analysis) promises that we can expect to see further plot twists and advocacy from stakeholders for and against this Rule. If you need help navigating the Rule’s implications for your operations or particular projects, feel free to reach out.

Footnotes:
1Exec. Order No. 13,778, 82 Fed. Reg. 12497 (Feb. 28, 2017).
2See Definition of “Waters of the United States”–Recodification of Pre-Existing Rules, 84 Fed. Reg. 56626 (Oct. 22, 2019).
3EPA, The Navigable Waters Protection Rule: Definition of “Waters of the United States” (Jan. 23, 2020), https://www.epa.gov/sites/production/files/2020-01/documents/navigable_waters_protection_rule_prepbulication.pdf [hereinafter Final Rule]; Final Rule: The Navigable Waters Protection Rule, EPA (last visited Mar. 2, 2020), https://www.epa.gov/nwpr/final-rule-navigable-waters-protection-rule.
4Final Rule at 87, 323 (to be codified at 33 C.F.R. § 328.3(a)).
5Final Rule at 323–24 (to be codified at 33 C.F.R. § 328.3(b)). Only converted cropland and waste treatment systems were considered non-jurisdictional by definition in the 2015 WOTUS Rule. See 33 C.F.R. § 328.3 (2019).
6Id.
7Final Rule at 327 (to be codified at 33 C.F.R. § 328.3(c)(8)).
8Final Rule at 327 (to be codified at 33 C.F.R. § 328.3(c)(5)); see also id. at 96 (clarifying “in direct response” versus “more than in direct response”).
9Id. at 325 (to be codified at 33 C.F.R. § 328.3(c)(3)). The agencies clarify that there is a distinction between ephemeral flow from a snowfall event from sustained intermittent flow from melting snowpack that is continuous for weeks or months at a time. Final Rule at 95.
10Id. at 111–12, 325 (to be codified at 33 C.F.R. § 328.23(c)(1)). Under the 2015 Rule “adjacent” meant “bordering, contiguous, or neighboring” and wetlands that were separated from other jurisdictional waters by artificial or natural structures were considered adjacent, regardless of the ability to have a direct hydrologic surface connection. See 33 C.F.R. § 328.3(c) (2019).
11Final Rule at 112.

Nathan Vassar is a Principal in the Firm’s Water Practice Group. Nathan assists political subdivisions, communities, and utilities with water supply development, environmental permitting, and enforcement matters with both state and federal regulators. Lauren Thomas is an Associate in the Firm’s Water Practice Group. Lauren assists clients with water quality matters, water resources development, regulatory compliance, permitting, enforcement, and litigation. If you would like additional information or have questions about this article, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com, or Lauren at 512.322.5850 or lthomas@lglawfirm.com.