Nearly three years after issuing an executive order on the subject, the Trump administration has finalized the Navigable Waters Protection Rule to narrow the scope of waters subject to federal regulation under the Clean Water Act.
In 2015, the Obama administration finalized the Clean Waters Rule, which generally expanded the jurisdiction of the EPA and Army Corps of Engineers over "waters of the United States." The rule was challenged in district and appellate courts throughout the country. After various court rulings, including one by the Supreme Court, the Clean Waters Rule became effective in only about half of the states, creating a patchwork of regulation. Upon assuming office, President Trump issued an executive order in which he directed a new rule be considered that mirrored the more limited jurisdictional view announced by Supreme Court Justice Antonin Scalia in prior rulings. Not surprisingly, the Navigable Waters Protection Rule adopts the narrower view.
There are only four categories of jurisdictional waters under the new rule: the territorial seas and traditional navigable waters; tributaries; lakes, ponds and impoundments of jurisdictional waters; and adjacent wetlands. In determining the scope, the definitions of these terms are important.
Traditional navigable waters are waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. Tributaries must be perennial or intermittent in a typical year and are defined as a river, stream or similar naturally occurring surface water channel that contributes surface water flow directly or indirectly to a jurisdictional body of water. Lakes, ponds and impoundments are standing bodies of open water that contribute surface water flow directly or indirectly to a jurisdictional water.
Wetlands must be adjacent to other jurisdictional waters. The term "adjacent wetlands" means wetlands that abut a jurisdictional water; are flooded by a jurisdictional water in a typical year; are physically separated from jurisdictional waters only by a natural berm, bank, dune or similar natural feature; or are physically separated from jurisdictional waters by an artificial dike, barrier or similar artificial structure so long as that structure allows for a direct hydrologic surface connection, such as through a culvert, flood or tide gate, pump or similar artificial feature.
The new rule also identifies 12 categories of waters that are not classified as "waters of the United States." These include any waters that are not one of the four categories of jurisdictional waters, as well as groundwater, ephemeral features and prior converted cropland. The term "prior converted cropland" is defined for the first time in the rule and means any area that, prior to December 1985, was drained or otherwise manipulated for the purpose of making production of an agricultural product possible.
Ditches are also excluded. They are broadly defined as a constructed or excavated channel used to convey water. To be excluded, the ditch must not be a traditional navigable water, a tributary or constructed in an adjacent wetlands.
The narrower jurisdictional scope closely follows the opinions written by Justice Scalia, as required under the executive order. According to the agencies, the narrower scope of the new rule is also within the scope of the government's authority over navigable waters under the Clean Water Act. As with the Clean Water Rule, this new rule will be challenged, and the likely result will be the same patchwork of regulation previously seen. Ultimately, though, the Supreme Court will have to decide the appropriate scope of federal jurisdiction.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney of enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www.bswenviroblog.com, or contact John B. King at jbk@bswllp.com or (225) 381-8014.
