Focus On Water Division
Nebraska Solicits Input on Waters of the United States (WOTUS) Request

From May 30 through June 12, 2017, NDEQ is soliciting input from local governmental agencies and other interested parties regarding a request from U.S. EPA and U.S. Army Corps of Engineers (Army Corps) to provide state and local input relating a forthcoming proposal to revise the definition of waters of the United States.

Explanation of the NDEQ Survey and How It Will Be Used

Below is a link to an online survey that NDEQ has made available to seek input from local governmental agencies and other interested parties. The purpose of NDEQ’s Online Survey is to provide NDEQ with additional perspectives as the agency develops a response to the EPA and Army Corps’ request for preliminary state and local input. Because states and local governments have been given a short deadline to develop responses, NDEQ is asking for online comments to be submitted by 11:59 p.m. Monday, June 12.

There are fields on the survey that are optional, including e-mail address, and your name or the organization you represent. Anonymous submissions will be accepted, but you are encouraged to include your name and e-mail address in case we have questions.

Click on the link below to participate in the Online Survey. Also below is some background on the issue, provided by the EPA and Army Corps.

Background Information
(Information provided by U.S. EPA and Army Corps of Engineers)

“Waters of the U.S.” Over Time

From the 1970s through the 1990s, the majority of federal courts, as well as the agencies, consistently interpreted a broad scope of Clean Water Act jurisdiction.

Supreme Court decisions in 2001 and 2006 held that the scope of navigable waters must be linked more directly to protecting the integrity of waters used in navigation. The justices in the 2006 Rapanos decision were split on how this was to be accomplished.

The EPA and Army Corps have been working since these Supreme Court decisions to provide clarification and predictability in the procedures used to identify waters that are – and are not – covered by the Clean Water Act.

The 2015 Clean Water Rule was an effort to provide that needed clarification and predictability. Many stakeholders, including many states, expressed concerns with the 2015 Rule.

The EPA and Army Corps are now embarking on another effort on identifying waters of the U.S., to provide clarity and predictability to members of the public.

The Executive Order

On February 28, 2017, the President signed the “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

The Executive Order calls on the EPA Administrator and the Assistant Secretary of the Army for Civil Works to review the final Clean Water Rule and “publish for notice and comment a proposed rule rescinding or revising the rule….”

The Executive Order directs that EPA and the Army Corps “shall consider interpreting the term ‘navigable waters’” in a manner “consistent with Justice Scalia’s opinion” in Rapanos. Justice Scalia’s opinion indicates CWA jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters

Two-Step Process

The EPA and Army Corps are implementing the Executive Order in two steps to provide as much certainty as possible as quickly as possible to the regulated community and the public during the development of the ultimate replacement rule.
  1. The EPA and Army Corps are taking action to establish the legal status quo in the Code of Federal Regulations, by recodifying the regulation that was in place prior to issuance of the Clean Water Rule and that is being implemented now under the U.S. Court of Appeals for the Sixth Circuit’s stay of that rule.
  2. The EPA and Army Corps plan to propose a new definition that would replace the approach in the 2015 Clean Water Rule with one that reflects the principles that Justice Scalia outlined in the Rapanos plurality opinion.
The EPA and Army Corps are aware that the scope of CWA jurisdiction is of intense interest to many stakeholders and therefore want to provide time for appropriate consultation and deliberations on the ultimate regulation.

In the meantime, the EPA and Army Corps will continue to implement regulatory definition in place prior to the 2015 rule, consistent with the 2003 and 2008 guidances, in light of the SWANCC and Rapanos decisions, pursuant to the Sixth Circuit stay of the Clean Water Rule.

Step 1: Withdraw 2015 Clean Water Rule

While the Sixth Circuit stay may remain in effect for some time, its duration is uncertain.

To provide greater certainty, the agencies will move to reinstate the preexisting regulations and guidance and to withdraw the 2015 Rule.

In the Step 1 proposed rule, the agencies will define “waters of the United States” using the regulatory definition in place before the Clean Water Rule, which the agencies will continue to implement according to longstanding practice, just as they are today.

The Step 1 proposed rule would maintain the approach in place for decades until a revised rule with a new definition can be promulgated.

Step 2: Develop New Rule Consistent with the Executive Order

The Executive Order directs the agencies to consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

Justice Scalia’s opinion indicates Clean Water Act jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.

The agencies are consulting with state and local government officials as we begin to develop the new definition. Following this phase of consultation, there will be additional opportunity for public comment through the federal rule development process.

Part of the consultation process is to further define the terms “relatively permanent waters” and “continuous surface connection.”

“Relatively Permanent” Waters

The EPA and Army Corps are suggesting the following potential approaches to defining “relatively permanent waters”:
Perennial plus
streams with “seasonal” flow

Perennial plus
streams with another measure of flow

Perennial streams

Current practice:
seasonal flow = about 3 months (varies regionally)

Use appropriate,
implementable metrics, e.g., frequency of flow, intersecting water table

that carry flow throughout the year except in extreme drought


Potential Approaches to Wetlands with a “Continuous Surface Connection”

The EPA and Army Corps are suggesting the following potential approaches to wetland with a “continuous surface connection”:
Surface connection
even through non- jurisdictional feature

Some degree of

Wetland must
directly touch jurisdictional waters

Current practice
considers directly abutting wetlands and those with a continuous surface connection, regardless of distance, to be jurisdictional

Use appropriate,
implementable metrics, e.g., distance

Only wetlands that
directly touch a jurisdictional water