Definition of Waters of the US Still in Limbo

How do I know if my stream or wetland is federally protected?

Many people who are experienced in land development know that obtaining a federal permit to place fill materials into water bodies such as rivers, streams, lakes, and wetlands can be a confusing and at times, costly and challenging endeavor.  Section 404 of the Clean Water Act (CWA) regulates the discharge of dredge or fill material into certain rivers, streams, and wetlands, but not all. To be protected by the CWA, a water body must meet the definition of “waters of the U.S.”.

Between 2006 and 2015, the definition of “waters of the U.S.” was based, in large part on the plurality opinion that was written in the U.S. Supreme Court for Rapanos v. United States 574 U.S. 715 (2006).  In the late 1980s, Rapanos filled 22 acres of wetland that he owned, without a permit, to prepare for construction of a mall. He argued that the land was not a wetland (despite the opinion of US EPA and his consultant) and that he was not breaking the law. He also claimed that his land was up to 20 miles (32 km) from any navigable waterways. USEPA disagreed, contending that his wetlands did meet the definition of waters of the U.S. due to the presence of a surface water connection to navigable waters by smaller streams and tributaries. After a lengthy battle in the lower courts, the Rapanos case ultimately found its way to the United States Supreme Court. 

Chief Justice Antonin Scalia, who wrote the plurality opinion in Rapanos v. United States, stated that the Clean Water Act confers federal jurisdiction over non-navigable waters only if the waters exhibit a relatively permanent flow, such as a river, lake, or stream. He further indicated that a wetland falls within the Corps' jurisdiction only if there is a continuous surface water connection between it and a relatively permanent waterbody, and it is difficult to determine where the wetland begins and the waterbody ends.  Based on this decision, the USEPA and US Army Corps of Engineers identified jurisdictional wetlands as any wetland that possessed a relatively permanent surface water connection to a traditionally navigable water.     

In May 2015, the Obama administration published the 2015 Waters of the US Rule (2015 Rule), which defined new protections for “waters of the U.S”. According to the administration, the new rule sought to provide clarity and certainty regarding which rivers, streams, lakes, and wetlands would be protected by the CWA. However, soon after its release, the proposed rule met strong opposition from the agricultural community, energy companies, home builders, and other industries, which contended that the government was seeking to regulate many more water bodies that were not previously regulated under Justice Scalia’s interpretation of “waters of the U.S”. Many in Congress who supported these industries accused the Obama administration of perpetrating a power grab that would have a negative impact on the American economy.

Thirteen states sued to block the implementation of the 2015 Rule.  On August 27, 2015, U.S. Chief District Judge Ralph R. Erickson issued an injunction, granting those states’ wishes. On October 9, 2015, the US Court of Appeals, Sixth Circuit stayed the rule's application nationwide. Since then, all wetlands have been evaluated to determine whether they meet the definition of “waters of the U.S.”  as they had been since the ruling was issued in Rapanos v. United States.

On February 28, 2017, President Donald Trump Issued an Executive Order directing USEPA and the Department of the Army to review and rescind or revise the 2015 Rule. According to USEPA, both agencies are in the process of reviewing the 2015 Rule and considering a revised definition of "waters of the U.S." consistent with President Trump’s Executive Order.

On January 22, 2018, the Supreme Court held that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule.  On January 31, 2018, the agencies signed a final rule adding an applicability date of February 6, 2020, to the 2015 Rule. USEPA contends that with this final rule, the agencies will maintain the legal status quo of the pre-2015 definition of “waters of the U.S.”, until at least February 6, 2020, when the definition of “waters of the U.S.” will be finally revised and put into regulation.  This decision now gives the USEPA and Department of Army two years to evaluate and reach a final decision on the definition of “waters of the U.S.”

On February 6, 2018, nine states, the Commonwealth of Massachusetts, and the District of Columbia filed suit in the US District Court, asking the court to vacate the Trump Administration’s suspension of the 2015 Rule and declare the action unlawful. In their court filing, the plaintiffs contended that the 2015 Rule was based on extensive scientific analysis. they also asserted that  and the new definition of “waters of the U.S.” streamlined and strengthened the enforcement of anti pollution laws, and protected the health and safety of our nation’s natural resources and drinking water supply. They further contended that reverting to the definition that predated the 2015 Rule constituted a “wholesale, redefinition of “waters of the United States”, and that in doing so, the USEPA and Department of the Army were redefining “waters of the U.S.” without adequate public notice, opportunity for public comment, sufficient justification, and outside of each agency’s statutory authority.

So what does this mean for your project?  Unless the District Court decides to stay the suspension of the 2015 Rule, It is possible that for the next two years, the US Army Corps of Engineers will continue to evaluate wetlands to determine whether they are protected by the CWA as they had prior to the 2015 Rule.  The Professional Wetland Scientists and regulatory specialists at Davey Resource Group have extensive experience working with clients on a wide variety of wetland issues and waterways permits. We can assist you with the identification of wetlands and streams on your property, help you determine whether the US Army Corps of Engineers will consider the wetlands and/or streams “waters of the U.S.”, and provide guidance and assistance for your permitting needs. We take our responsibilities to assist our clients and keep up with the changing regulatory climate very seriously.

If you are planning to develop your property, contact Greg Snowden or John Kusnier and let us help you navigate the waterways permitting process.

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