Updated: Aug 7, 2020
Updates to the definition of a "Water of the U.S." could have significant implications on the scope of federal jurisdiction.
On April 21, 2020, the United States Environmental Protection Agency (U.S. EPA) and the United States Army Corps of Engineers (USACE) published in the Federal Register a revision of the definition of a “Water of the United States.” While this may increase the speed or discount the permitting process by requiring a connection to a navigable waterway for a wetland to be jurisdictional, the rule may face challenges in federal courts. Therefore, consideration of wetland regulations under each state should be a part of project design and planning.
In the past, the Supreme Court has provided limited guidance as to what makes wetlands and waterways subject to federal jurisdiction under the term "waters of the United States." Within the past decade, attempts to address this included the implementation of the "significant nexus" test. This test asserted jurisdiction over wetlands that either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of traditionally navigable water.
The U.S. EPA and the USACE implemented a new Executive Order that was published in April 21, 2020 as a "Step Two Rule" which narrows jurisdiction to a direct connection to a traditional navigable waterway.
Under the Step Two Rule, four categories of waters are considered “waters of the United States”:
Territorial seas and traditional navigable waters;
Tributaries of jurisdictional waters- including perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year. Connection to a traditional navigable water or territorial sea is either directly or through other waters of the U.S. through channelized non-jurisdictional surface waters, through artificial features (culverts and spillways), through natural features (debris piles and boulder fields), or ditches where they satisfy the flow conditions of the perennial and intermittent tributary definition;
Lakes, ponds, and impoundments that contribute surface water flow to a jurisdictional water in a typical year either directly or through a water of the U.S., through channelized non-jurisdictional surface waters, through artificial features, or through natural features; and
Wetlands adjacent to non-wetland jurisdictional waters.
Under the rule, a wetland is considered “adjacent” if it:
Abuts (i.e., touches a side or corner of) another non-wetland jurisdictional water;
Is inundated by flooding from another non-wetland jurisdictional water at least once in a typical year;
Is physically separated from a non-wetland jurisdictional water by a natural berm, bank, dune, or similar natural feature without regard to whether there is a specific hydrological surface connection in a typical year; or
Is physically separated from a non-wetland jurisdictional water by an artificial structure like a road, dike, or barrier as long as the structure allows for a direct hydrologic surface connection between the wetland and the other jurisdictional water at least once in a typical year. This connection can be through a gate or culvert or even by water overtopping a road.
The Step Two Rule also identifies waters specifically excluded from the definition of a "water of the United States" and includes:
All waters not covered by the four categories of WOTUS discussed above;
Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands;
Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools;
Storm water runoff and overland sheet flow;
All ditches not considered “tributaries;”
Prior converted cropland, except when the cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the immediately preceding five years) and has reverted to wetlands;
Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease;
Certain artificial lakes and ponds, including water storage reservoirs, and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters;
Water-filled depressions or pits excavated in connection with mining, or construction or to obtain fill, sand, or gravel;
Certain storm water control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater run-off;
Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds, that are constructed in upland or in non-jurisdictional waters; and
Wastewater treatment systems.
For more information on the new ruling, please see the attached ruling published in the Federal Register.