Definition of ‘Waters of the U.S.’ Finally Proposed

EPA and the Corps of Engineers have finally proposed a new definition of “waters of the United States” to replace the Obama-era definition. The proposed definition is consistent with the executive order issued by President Trump in February 2017, which sought a regulatory definition similar to the more restrictive view of jurisdiction suggested by Justice Scalia in the Rapanos decision.

Essentially, the proposed definition utilizes a “baseline concept” that jurisdictional waters include only waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that all waters are not necessarily “waters of the United States.” As such, the proposed rule includes traditional navigable waters, including the territorial seas, tributaries that contribute perennial or intermittent flow to such waters, certain ditches, certain lakes and ponds, impoundments of otherwise jurisdictional waters, and wetlands adjacent to other jurisdictional waters.

Traditional navigable waters are those waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce. These types of waters have been historically regulated because they are “navigable-in-fact,” as they were traditionally used as highways over which trade and travel were conducted for commerce. This category now includes the territorial sea and all waters subject to the ebb and flow of the tide.

Tributaries of traditional navigable waters are regulated. Under the proposed rule, a tributary is a river, stream or similar naturally occurring surface water channel that contributes perennial or intermittent flow to traditional navigable waters. Other waters are also regulated. These include lakes and ponds that are traditional navigable waters, or contribute perennial or intermittent flow to traditional navigable waters, and lakes and ponds that are flooded by jurisdictional waters. Impoundments of any jurisdictional water continue to be regulated.

Only certain ditches are regulated. Ditches are broadly defined as artificial channels used to convey water. Ditches that satisfy any of the conditions to be a traditional navigable water are regulated. Also regulated are ditches constructed in a tributary or that relocate or alter a tributary if the ditch also satisfies the conditions of the tributary definition, as well as ditches constructed in an adjacent wetland as long as those ditches also satisfy the conditions of the tributary definition. Any ditch, as defined, that is not included above is not regulated.

Of course, certain wetlands are regulated. However, the wetland must be adjacent to jurisdictional waters, such as traditional navigable waters or a regulated tributary, lake, pond, impoundment or ditch. To be adjacent, the wetland must abut or have a direct hydrologic surface connection to jurisdictional waters. “Abut” means to touch at least at one point or side of a jurisdictional water. A direct hydrologic surface connection occurs as a result of inundation from a jurisdictional water to a wetland or via perennial or intermittent flow between a wetland and a jurisdictional water. A wetland that is physically separated from jurisdictional waters by upland or by dikes, barriers or similar structures and also lacking a direct hydrologic surface connection to such waters is not adjacent.

The proposed rule seems to provide the “bright line” and ease of application the previous administration touted when the existing rule was published. However, it clearly is more restrictive than the existing rule and will likely be the subject of litigation when finalized.

Written By: John B. King


To Sample or Not to Sample?

Phase I Environmental Site Assessments (ESAs) are widely used by real estate purchasers to determine whether contamination exists on a property. There has been some debate as to whether sampling should be included as part of the ESA in order for a purchaser to obtain certain legal protections.

One protection or defense available under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to an owner of previously contaminated property is called the Bona Fide Prospective Purchaser (BFPP) defense, which allows for the acquisition of contaminated property without liability for response costs. In order to obtain and maintain the BFPP defense, adherence to all of the terms of the defense is necessary. One major requirement to obtain BFPP status is that, prior to the actual purchase, the purchaser must conduct “all appropriate inquiries” in conformance with EPA’s All Appropriate Inquiries Rule (40 CFR Part 312). EPA has deemed compliance with ASTM Standard E1527-13, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, as compliance with most provisions of the rule.

Under the rule and the ASTM standard, sampling is not required to fulfill the “all appropriate inquiries” requirement and obtain the BFPP defense. The ASTM standard makes clear in Section 7.4 that the standard “does not include any testing or sampling of materials (for example, soil, water, air, building materials).” The preamble to the rule states, “The final regulation does not require that sampling and analysis be conducted to comply with the all appropriate inquiries requirements” (70 FR 66089). Additionally, it states, “With regard to the conduct of sampling and analysis, today’s final rule does not require sampling and analysis as part of the all appropriate inquiries investigation” (70 FR 66101). The rule itself merely states that “sampling and analysis may be conducted to develop information to address data gaps” (40 CFR 312.20).

As a purchaser must take steps before the purchase to obtain BFPP status, a purchaser must also take steps after the purchase to maintain that status by, among other things, taking reasonable steps to stop continuing releases, prevent future releases and prevent exposure to previously released substances. EPA mentioned that sampling could provide information regarding site-specific conditions necessary to fully understand the property. For example, sampling can provide information regarding the exact location of contamination so that post-purchase activities, such as digging or construction, do not cause additional releases or exposure to contamination. EPA also stated that a lack of sampling could be a factor in determining whether two provisions of the rule (the degree of obviousness of contamination at the property and the ability to detect the contamination by appropriate investigation) have been met. However, the rule also states that compliance with the ASTM standard is deemed compliance with these two provisions of the rule.

EPA has clearly stated that sampling could occur “pre- or post-acquisition” and “prior to or after acquiring a property” (70 FR 66101-2). As a result, even if sampling is deemed necessary, it can be accomplished at some point after the purchase.

While EPA thinks that sampling “may be valuable” in certain circumstances, EPA is equally clear that the rule “does not require that sampling and analysis be conducted as part of the all appropriate inquiries investigation” (70 FR 66101). In summary, sampling does not seem to be required prior to purchase in order to obtain the BFPP defense, but it may be helpful before or after the purchase to assist in maintaining the BFPP defense.

John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting, compliance and due diligence. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.

Contact John B. King at or (225) 381-8014.

EPA Offers New Owners A New Hope

EPA is taking steps to further compliance and reduce emissions in the upstream oil and gas sector. It announced it is developing, and seeking comments on, a New Owner Clean Air Act Audit Policy (CAA Policy). Once implemented, new owners may conduct an in-depth audit of newly acquired facilities, correct identified violations or issues, and obtain a full civil penalty waiver for violations existing prior to the acquisition of the facility. Continue reading “EPA Offers New Owners A New Hope”

Upstream Operators May Get Some Regulatory Relief

EPA proposed revisions to the emission standards for the oil and natural gas sector, which has become known as the Methane Rule, on Sept. 11, 2018. The revisions, as proposed, do not substantially alter the fundamental requirements of the rule, but do relax several provisions for which the industry requested reconsideration. EPA also freely admits that the proposed revisions will increase emissions of methane and VOCs. Continue reading “Upstream Operators May Get Some Regulatory Relief”

The Trump Administration’s Impact On Oil and Gas Activities

The Trump Administration has made it clear that it seeks to unleash the potential of American-produced energy. Towards that end, it has taken actions on a variety of fronts to encourage production of oil and gas and decrease regulatory burdens on the industry.   

President Trump has issued a number of pronouncements regarding energy production. On his first day in office, January 20, 2017, the America First Energy Plan was released. Essentially, the Plan is a blueprint for future action in order to “maximize the use of American resources, freeing us from dependence on foreign oil.”  It declares that the industry has been “held back by burdensome regulations,” such as the Climate Action Plan and Waters of the United States Rule, and pledges to eliminate these and other “harmful and unnecessary policies.”  Further, the Plan recognizes the “$50 trillion in untapped shale, oil, and natural gas reserves,” and promises to “embrace the shale oil and gas revolution to bring jobs and prosperity to millions of Americans.” Continue reading “The Trump Administration’s Impact On Oil and Gas Activities”

Landowner, Operator Protections from Contamination

The ownership of land usually includes the right to use all of the property, both above and below the surface. As a general example, the owner of the surface of the property may use it as he or she sees fit and can also explore for and produce oil and gas from below the surface. But the law allows that the ownership of the land and the ownership of the mineral rights may be separate. In this situation, the interests of the separate owners may not always align. However, even though their interest may not align and their rights and obligations may differ, each can take certain precautions to protect their respective rights. Continue reading “Landowner, Operator Protections from Contamination”

The Meandering Course of the Clean Water Rule

The Clean Water Rule, also known as the Waters of the United States Rule, has been controversial since it was first proposed. It was opposed in multiple judicial forums when it was finalized in June, 2015. The Trump Administration has taken steps to repeal and replace the Rule. The latest chapter in the ongoing saga is the issuance by the EPA and the Corps of Engineers (the Agencies) of a Supplemental Notice of Proposed Rulemaking (Notice), which provided further justification of its effort to repeal the Rule. Continue reading “The Meandering Course of the Clean Water Rule”