Shutdown Reflections on WOTUS

The partial government shutdown that began December 22, 2018 has interrupted the Trump administration’s proposal to revise the Clean Water Act’s definition of Waters of the United States (WOTUS Proposal).  The pre-publication version of the WOTUS Proposal was released on December 11, 2018.[1]  Less than a week after the shutdown began, on December 28, 2018, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced they would be holding a public hearing on January 23, 2019 in Kansas City, Kansas to receive comments from interested parties, and that interested parties could also submit comments online via the Federal eRulemaking Portal.[2]  However, barely over a week later, on January 7, 2019, the agencies announced that the meeting and publication of the proposal in the Federal Register would be postponed due to the lapse in EPA appropriations (aka the shutdown).  The WOTUS Proposal rulemaking process should resume once the partial shutdown ends (assuming it ends before a change in administrations).  The hiatus provides interested parties with time to review the 253-page pre-publication WOTUS Proposal, and consider the potential impacts of the new WOTUS definition on their interests, should the proposal be finalized.

Of critical importance to interested parties here in the arid southwest is the treatment of ephemeral washes.  Ephemeral washes flow only in direct response to rain events, and due to dry soil conditions and high infiltration rates, may contribute little if any flow to any downgradient washes or traditionally navigable waters (TNWs).  Ephemeral washes are common in the arid southwest and the agencies have often asserted jurisdiction over such washes.  Property owners, including developers and mining companies, as well as the EPA and Corps themselves, have long wrestled with the jurisdictional status of such ephemeral washes.

The WOTUS rule finalized by the agencies in 2015 (2015 Rule), and proposed for repeal in 2017,[3] expanded the scope of WOTUS by defining tributaries subject to jurisdiction as waters that contribute flow directly or indirectly to TNWs, interstate waters, or territorial seas, and that are characterized by physical indicators of a bed and banks and an ordinary high water mark.[4]  Flow in the tributary could be perennial, intermittent or ephemeral.  The 2015 Rule made ephemerals jurisdictional as tributaries, without regard to the volume, frequency or duration of flow, or proximity to TNWs, etc. as long as the physical indicators were apparent, and the feature could be traced downgradient eventually to a TNW, interstate water, or territorial sea.  The 2015 Rule excluded only “erosional features” lacking the physical indicators of flow.  In the arid southwest, physical indicators of flow can be created very easily from a single storm, and remain visible for many years, due to the erodible nature of desert soils.  Such indicators by themselves establish little to nothing about the actual flow of water in the feature, or any impacts to water quality in downgradient TNWs, etc.

The WOTUS Proposal would significantly constrain the tributary concept, extending jurisdiction only to waters that contribute perennial or intermittent flow directly or indirectly via other jurisdictional waters to a TNW or territorial sea in a typical year.  Expressly excluded from jurisdiction are features that flow only in response to precipitation.  Gone are the physical indicator criteria.  Added are definitions of perennial, intermittent and ephemeral, with jurisdiction extending only to intermittent tributaries, characterized by “surface water flowing continuously during certain times of a typical year, not merely in direct response to precipitation,” meaning “extended periods of predictable, continuous, seasonal surface flow occurring in the same geographic feature year after year.”[5]  As a result, many if not most ephemerals subject to jurisdiction under the 2015 Rule would now be non-jurisdictional under the WOTUS Proposal.

The objectives of the WOTUS Proposal include providing regulations that are clearer and easier to understand, and rebalancing the relationship between the federal government and states and tribes in managing land and water resources.  If finalized, the WOTUS Proposal would undoubtedly achieve these goals with regard to ephemerals.  Landowners with ephemeral washes on their property would face a much easier task in evaluating jurisdictional status and 404 permitting issues.  Many, if not most, ephemerals the federal agencies might have asserted jurisdiction over under the 2015 Rule would be clearly beyond Clean Water Act jurisdiction under the WOTUS Proposal.  States in the arid southwest, unconstrained by the Commerce Clause limitations upon the federal government, would of course be free to utilize existing authorities to regulate discharges to their ephemerals, or enact new ones, at the discretion of the state’s government.  The WOTUS Proposal’s treatment of ephemerals seems entirely consistent with Congress’ respect for the rights of states as professed in the Clean Water Act: “It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce and eliminate pollution” and “to plan the development and use . . . of land and water resources . . . .”[6]

[1] https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf.

[2] 83 Fed. Reg. 67174 (December 28, 2018).

[3] See 83 Fed. Reg. 32227 (July 12, 2018).

[4] 80 Fed. Reg. 37054, 37058 (June 29, 2015).

[5] WOTUS Proposal, pre-publication version, at p. 73: https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf.

[6]  33 USC § 1251(b).