EPA Publishes New Definition of WOTUS Under Clean Water Act

Practical Law Legal Update w-023-8018 (Approx. 4 pages)

EPA Publishes New Definition of WOTUS Under Clean Water Act

by Practical Law Real Estate

Background

The CWA prohibits the discharge of pollutants into regulated waters without a permit. The definition of WOTUS determines what waters are subject to the CWA. The Clean Water Rule, which previously defined WOTUS, was subject to numerous legal challenges, with opponents arguing that it expanded federal jurisdiction and adversely affected their property rights.

In August 2019, the US District Court for the Southern District of Georgia held that the Clean Water Rule was unlawful under both the CWA and the federal Administrative Procedures Act (APA) (see Legal Update, District Court Finds WOTUS Definition Unlawful Under Clean Water Act). In September 2019, the EPA announced that it would repeal the Clean Water Rule and begin work on replacing its definition of WOTUS.

On January 23, 2020, the EPA and the Army finalized the Final Rule, which includes a new definition of WOTUS. The new rule:

Establishes four simple categories of jurisdictional waters.
Provides clear exclusions for many water features that traditionally have not been regulated.
Defines terms in the CWA that have never been defined before.

Navigable Waters Protection Rule

The Final Rule defines WOTUS as:

Territorial seas and traditional navigable waters.
Perennial and intermittent tributaries to navigable waters.
Certain lakes, ponds, and impoundments.
Wetlands adjacent to jurisdictional waters.

The Final Rule also explicitly lists bodies of water that are not considered WOTUS, including:

Features that only contain water in direct response to rainfall.
Groundwater.
Many ditches, including most farm and roadside ditches.
Prior converted cropland.
Farm and stock watering ponds.
Waste treatment systems.

Finally, the Final Rule clarifies key elements that define the scope of federal jurisdiction under the CWA, including:

Removing the proposed separate categories for jurisdictional ditches and impoundments.
Refining the proposed definition of "typical year" to provide regional and temporal flexibility and ensures jurisdiction is being accurately determined in times that are not too wet and not too dry.
Defining "adjacent wetlands" as wetlands that are meaningfully connected to other jurisdictional waters.

The Final Rule becomes effective 60 days after it is published in the Federal Register.

Practical Implications

The goal of the Final Rule is to achieve the proper relationship between the federal government and states in managing land and water resources, but it is expected to face multiple legal challenges like the Clean Water Rule before it. Developers should consult with environmental counsel to see how the Final Rule may affect projects near waterbodies and wetlands.

For more information on wetlands, stormwater management, and commercial real estate development, see:

EPA Publishes New Definition of WOTUS Under Clean Water Act | Practical Law