ILMA Compoundings June 2019 - 36

WASHINGTON LANDSCAPE

Defining 'Waters of the
United States'
By Matt Levetown

he question "What is water?" ought to be an easy
one. Over 40 years of litigation over the meaning
of "water" in the Clean Water Act of 1972 (CWA)
suggests otherwise. The act governs water pollution and
allows the U.S. Environmental Protection Agency (EPA) to
sue polluters of "waters with a significant nexus to navigable waters." Through litigation, this definition has been
expanded, and in some states includes independent stationary water features such as playas and prairie potholes.
In recent years, industry concerns have been raised about the
Clean Water Rule (aka Waters of the United States (WOTUS)
Rule), a regulation published in 2015 to clarify water management under the CWA. WOTUS attempts to define exactly
which waters are subject to the federal government's enforcement and which should be left to the states. In 2019, the EPA
published a transformed rule, raising the ire of environmentalist
groups. How did the CWA turn into a muddy puddle?
HISTORY
Perhaps the most infamous case on the CWA is the 2006
Rapanos v. United States.1 John Rapanos was a developer
who filled 22 acres of wetland with sand to build a mall.
He was criminally prosecuted by the federal government for
violation of the CWA, and his defense relied on the nearest
navigable waterway being 20 miles away. The EPA had
been expanding its interpretation of "navigable waterways"
to include areas connected to waters, which would include
Rapanos' new sandbox.
The Supreme Court issued a plurality opinion, meaning
that it did not enjoy the support of a majority of justices,
and lower courts have to apply the narrowest opinion as law.
The plurality opinion, written by Justice Antonin Scalia,
used Webster's Dictionary to determine that "waters" means
"relatively permanent, standing, or continuously flowing
waters." As a result, wetlands would only fall under the
CWA if there exists a continuous surface water connection
to another permanent body of water.
By contrast, Justice Anthony Kennedy's concurring opinion
argued for a "significant nexus" test for a body of water. A
"nexus" exists where the water "significantly affects" the chemical, biological and physical characteristics of the downstream
navigable waterway. Environmentalist groups lauded Justice
Kennedy's decision as it balanced the ecological intent of the
CWA with the government's powers over navigable waterways.
However, it did little to help stakeholders determine whether

JUNE 2019

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a particular "water" is covered by the CWA, as the analysis
requires a fact-intensive investigation that drives up costs.
The "significant nexus" test formed the basis of the 2015
WOTUS rule, and nearly immediately lawsuits were filed by
13 states, resulting in a stay in implementation of the rule.
Following a reversal by the Supreme Court that would apply
the 2015 WOTUS, the Trump administration published its
proposal to significantly alter WOTUS.
CHANGES
The new 2019 WOTUS rule is designed to clearly delineate
which waters are covered by the CWA by abandoning the
"significant nexus" test, requiring an individual determination of a waters status. Instead, it draws from the "adjacency
or direct connection" test supported by Scalia in Rapanos,
which was one of the valid tests used by states before the
Supreme Court's ruling.
Six water features are specifically identified as falling
within WOTUS jurisdiction:
* Traditional navigable waters;
* Tributaries that are navigable waters;
* Ditches that are navigable waters or are constructed
in a tributary or adjacent wetland;
* Lakes and ponds that are navigable waters or contribute
flow to a navigable water;
* Impoundments of any water otherwise designated; and
* "Adjacent wetlands" to the above.
Other provisions of the rule would bring some stormwater
management systems under WOTUS, despite a series of
cases from local governments to exclude such features. Unless
changed or altered by guidance documents, localities will not
be able to treat water in covered systems, and the rule expands
federal enforcement over stormwater pollution discharges.
A cursory reading indicates that ditches can be both excluded
from the rule and covered by the rule, depending on whether
particular water is governed by the rule. Most likely it will be
interpreted to exclude water drainage ditches in states such as
Iowa, which was one basis for challenging the prior rule.
IMPACT
Shortly before publication of the 2019 WOTUS, the EPA
issued a rule without public comment to delay the 2015
WOTUS. A number of states sued for violation of the

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