On February 14, 2019, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed a new rule defining the Clean Water Act’s term “waters of the United States” (WOTUS).REF This terminology is important because it helps to inform which waters the agencies can regulate under the Clean Water Act: Specifically, the agencies can regulate “navigable waters,” which include “the waters of the United States, including the territorial seas.”REF

For decades, the two agencies have struggled to come up with a definition for WOTUS, primarily because they have repeatedly sought to go beyond what is authorized by law. Instead of respecting the legal limitations placed on them, including by the Commerce Clause and the Clean Water Act, the two agencies have instead sought to regulate almost every kind of water imaginable, down to depressions in land that are dry except for a few days each year when they hold water from heavy precipitation. To its credit, the Trump Administration is trying to develop a definition that is well within the law.

While the proposed rule is a significant step forward, there are still improvements that need to be made for the final WOTUS rule. This Issue Brief provides some brief background on the proposed rule, and highlights two critical improvements that are needed: (1) the definition of “traditional navigable waters” should require the transport of commerce on those waters, and (2) waters that only have intermittent flow should not be regulated.

Brief Background on the EPA’s and Corps’ New Proposed WOTUS Rule

The two agencies appear to appreciate that there are proper legal constraints on how they can define “waters of the United States.” This includes respecting the primary state role in addressing water pollution that is expressly detailed in the Clean Water Act,REF the importance of clear regulations to reduce the subjective and vague definitions that have plagued the law, and the limitations placed on the agencies by the Commerce Clause. Unlike past overbroad interpretations of the law, such as the Obama Administration’s 2015 Clean Water Rule,REF the EPA and Corps would not regulate waters such as:

• Ephemeral waters,REF meaning waters that may exist only a few days a year after heavy precipitation (although, as will be discussed, the definition of intermittent waters may undermine the goal to exclude ephemeral waters);
• Waters that do not meet any specific definition within the regulations, but can be regulated because the agencies, through an after-the-fact, case-by-case analysis, conclude that such waters have a significant nexus to certain waters;
• Non-navigable, isolated, intrastate waters; and
• Wetlands that are not truly adjacent to regulated waters.REF

Critical Improvement 1: Require the Transport of Commerce when Defining “Traditional Navigable Waters”

The scope of the WOTUS definition is largely informed by how the agencies define “traditional navigable waters.”REF As in the proposed rule, these specific waters are the foundation of the WOTUS definition. Other waters are included within the WOTUS definition if they have the requisite relationship to these foundational waters. The proposed rule defines these foundational waters as:

Waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide.REF

This language is far too broad and inconsistent with the law. Merely requiring a water (which can even include intrastate watersREF) to have some use in interstate or foreign commerce could lead to very expansive interpretations. This use need not even currently exist. The definition, as supported by the law, should at a minimum be limited to situations where the waters are used in the transport of commerce.REF

A long line of cases starting with The Daniel BallREF have detailed consistent requirements to help determine which waters should be traditional navigable waters or “foundational waters.” In the 1870 case The Daniel Ball, the U.S. Supreme Court explained:

Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.REF

The Daniel Ball and its progeny have consistently used the concepts of “highways for commerce” and “trade and travel.”REF The “transport of commerce” captures the “highways for commerce” and “trade and travel” requirements in the case law.

Further, the term “highways for commerce” is a clear indication of movement of commerce on the water. Therefore, the necessary commerce that must take place on the water is not a stationary activity, such as something recreational, but instead part of a commercial activity that helps move that activity along a channel of interstate or foreign commerce.REF

Recommendation. There is language in Section 404(g)(1) of the Clean Water Act, as discussed in the proposed rule, which provides an indication as to what Congress considered to be traditional navigable waters or foundational waters.REF This language can help to inform a revised definition of “traditional navigable waters” for the final rule while being consistent with the case law. The following is a recommended revised definition:

Waters which are currently used, or were used in the past, or may be susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce, including the territorial seas and waters which are subject to the ebb and flow of the tide.REF

Critical Improvement 2: Exclude Intermittent Waters

While the proposed rule would exclude ephemeral waters, it would still regulate intermittent waters. This is a major difference between the proposed rule and Justice Antonin Scalia’s plurality opinion in the 2005 Supreme Court case Rapanos v. United States. The plurality opinion expressly and properly rejected the inclusion of intermittent waters.REF

The “intermittent” definition in the proposed rule states that “‘intermittent’ means surface water flowing continuously during certain times of a typical year and more than in direct response to precipitation” (such as when the groundwater table is elevated or when snowpack melts).REF

The duration that is meant by “certain times of a typical year” is far from clear, but it certainly appears to include anything from a matter of days to a duration that is not year-round (not a perennial water). This would include a vast amount of waters, including waters that in many ways might look like ephemeral waters.

The 2015 Clean Water Rule regulated too many waters, including trying to regulate waters that would generally be considered land. The proposed rule as drafted appears to have some of the same problems. Justice Scalia’s plurality opinion in Rapanos is so important because it would help to avoid such an outcome.

The opinion stresses the importance of the waters being “relatively permanent” and “standing or continuously flowing.” It stresses the Supreme Court’s past use of terms such as “discrete bodies of water,” “open water,” and “open waters” to describe regulated waters. The plurality also argues that at a bare minimum there must be “the ordinary presence of water.”REF By including intermittent waters, the proposed rule would be ignoring these requirements that help to provide clarity and limits to the waters that can be regulated under the Clean Water Act.

Recommendation. The agencies should exclude intermittent waters and take out references to intermittent flow in the proposed definitions of tributaries and lakes and ponds.REF While the Rapanos plurality opinion excludes intermittent waters, it would regulate more than perennial (year-round) waters. Footnote 5 of the plurality opinion explains:

By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months—such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent.REF

The agencies should develop an objective definition that mirrors footnote 5 and other key aspects of the plurality opinion.REF This would include clarifying that while waters with intermittent flow are excluded, this does not mean that waters would be excluded if there are extraordinary circumstances such as drought, and for seasonal rivers, streams, or similar naturally occurring surface water channelsREF with continuous flow for a minimum of 183 consecutive days within the year.REF

Requiring these “seasonal waters” to have continuous flow for a majority of the year (a minimum of 183 days) ensures that the water is not always coming and going (that is, it is not always “fitful”) and that there is the “ordinary presence of water” and the water can still be considered “relatively permanent.”REF

In addition to this objective measure, there should also be an ordinary person requirement.REF A tributary (or other water where flow is analyzed under the rule)REF should only be regulated if an ordinary person would consider it to be a discrete body of water such as a stream, river, or lake, and the water is relatively permanent and has standing or continuous flow.

This may seem subjective, but for property owners and agency officials such a standard would likely be easier to understand than trying to figure out whether a water meets the 183-day continuous flow/extraordinary-circumstances requirement. It also helps property owners (and the agencies) by giving them both this non-technical, commonsense-based approach to determine what waters are regulated and the additional objective requirement.REF

Conclusion

In defining “waters of the United States,” the EPA and Corps are bound by legal constraints: the Clean Water Act and the U.S. Constitution. They also have the practical considerations of developing a workable definition that property owners can understand and agencies can enforce.

The agencies appear to recognize these important points. The proposed rule is a good start, and by making changes, such as the two important changes identified in this Issue Brief, the agencies can succeed where their predecessors have failed.

Daren Bakst is Senior Research Fellow in Agricultural Policy in the Thomas A. Roe Institute for Economic Policy Studies, of the Institute for Economic Freedom, at The Heritage Foundation.