Audit, Compliance and Risk Blog

The Clean Water Act (CWA) empowers federal agencies to regulate activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by the US Environmental Protection Agency (EPA) and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the US Army Corps of Engineers (Corps).

However, CWA does not define this critical term. For many years, agencies used regulatory definitions jointly developed by EPA and the Corps in rules that date primarily from 1986, which included ambiguities that increased agency discretion but also frustrated landowner aspirations in some cases. However, beginning in 2001 a series of decisions by the US Supreme Court frayed the expansive edges of the regulators’ interpretations. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. Then, in Rapanos v. United States, the Court ruled in 2006 that the Corps can exert jurisdiction over non-adjacent wetlands where there is a “significant nexus” between the wetlands and navigable waters (in addition, the wetlands must be at least “relatively permanent”).

What definitions are provided by the latest proposal?

The agencies are now proposing the following definitions:

• “Waters of the United States”

In the latest proposal:

“[40 CFR 120.2(a)] Waters of the United States means:

(1) All waters which are currently used, or 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) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds:

(i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified [elsewhere in this definition]; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified [elsewhere in this definition];

(4) All impoundments of waters otherwise defined as waters of the United States under the definition, other than impoundments of waters identified under paragraph (a)(3) of this section;

(5) Tributaries of waters identified in paragraphs (a)(1), (a)(2), (a)(4), or (a)(6) of this section:

(i) That are relatively permanent, standing or continuously flowing bodies of water; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section;

(6) The territorial seas;

(7) Wetlands adjacent to the following waters (other than waters that are themselves wetlands):

(i) Waters identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraphs (a)(4) or (a)(5)(i) of this section and with a continuous surface connection to such waters; or

(iii) Waters identified in paragraphs (a)(4) or (a)(5)(ii) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section;

(8) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act are not waters of the United States; and

(9) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.”

This language incorporates “navigable waters” in (1), interstate waters and wetlands in (2). Subsections (3), (5) and (7) seek to translate the Supreme Court decisions I mentioned above.

• “Wetlands”

In the latest proposal:

“[40 CFR 120.2(b)] Wetlands means 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.”

This definition attempts to define wetlands based on hydrology and associated lifeforms.

• “Significantly affect”

In the latest proposal:

“[40 CFR 120.2(g)] Significantly affect means more than speculative or insubstantial effects on the chemical, physical, or biological integrity of waters identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section. When assessing whether the effect that the functions waters have on waters identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section is more than speculative or insubstantial, the agencies will consider:

(1) The distance from a water of the United States;

(2) The distance from a water identified in paragraphs (a)(1), (a)(2), or (a)(6) of this section;

(3) Hydrologic factors, including shallow subsurface flow;

(4) The size, density, and/or number of waters that have been determined to be similarly situated; and

(5) Climatological variables such as temperature, rainfall, and snowpack.”

This definition leaves regulators to make case-by-case determination, which is consistent with the ambiguous guidance from the Supreme Court. It supports traditional approaches in which upstream waters that might not qualify as waters of the US on their own are regulated as such because contamination or degradation would be expected to flow downstream to harm waters that do qualify on their own.

What now?

The agencies have scheduled “virtual hearings” on January 12, 13, and 18 of 2022. Comments are due by February 7, 2022. After that the agencies should move to finalize the rules, and to await the inevitable litigation.

Self-Assessment Checklist

Does my organization routinely discharge wastewaters:

• Into a natural water body?

• Into an artificial conveyance (ditch, storm sewer, etc.)?

• Into a sanitary sewer system?

Does my organization operate a facility where rainwater or snowmelt might flow:

• Into a natural water body?

• Into an artificial conveyance (ditch, storm sewer, etc.)?

Is my organization undertaking a construction or other project that disturbs a waterway, or disturbs soil or rock that might contaminate runoff into a waterway?

Has my organization evaluated the receiving waters to determine whether they qualify as “waters of the United States” subject to CWA requirements?

• Under the previous definitions?

• Under the newly proposed definitions?

Is my organization preparing comments on the pending proposals?

Has my organization evaluated requirements under state laws in each state in which activities may affect water bodies or wetlands?

Where can I go for more information?

• Proposed rule (12/7/21 Federal Register)

• EPA webpage ‘Revising the Definition of “Waters of the United States”’ 

About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years. 

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at: tei@ix.netcom.com