Just before the crystal ball dropped in Times Square on New Year's Eve, the U.S. EPA and U.S. Army Corps of Engineers made available a pre-publication copy of their final revised definition of "waters of the United States" (WOTUS).
The revised definition is the agencies' third attempt since 2015 to put to rest decades of wrangling over the scope of the Clean Water Act (CWA). First, the Obama administration updated the definition of WOTUS in 2015 (which was first codified in 1986). That rule attempted to provide clarity on the scope of the CWA in the wake of the Supreme Court's decision in Rapanos v. United States. The Obama-era definition was then repealed in 2019 and replaced in 2020 under the Trump administration. Finally, after reviewing the 2020 rule pursuant to Executive Order 13990 (and after a district court vacated the 2020 rule in August 2021), the Biden administration announced its intent to revise or replace the 2020 rule and proposed a new WOTUS definition in December 2021. Yes, that was just over the course of six years. If landowners and the regulated community were ever hoping for "regulatory certainty," recent history has not provided that relief.
In announcing the new definition, EPA and the Corps claimed to be seeking a middle ground between the various regulatory definitions and court precedent. To that end, the new definition of WOTUS identifies five categories of waters of the United States:
- Traditional navigable waters, the territorial seas, and interstate waters
- Impoundments of waters of the United States
- Tributaries to traditional navigable waters, the territorial seas, interstate waters, or impoundments of waters of the United States, if the tributaries meet either the relatively permanent standard or the significant nexus standard
- Wetlands (a) adjacent to traditional navigable waters, the territorial seas, and interstate waters; (b) adjacent to and with a continuous surface connection to relatively permanent impoundments of waters of the United States; (c) adjacent to tributaries that meet the relatively permanent standard; and (d) adjacent to and with a significant nexus to impoundments of waters of the United States or jurisdictional tributaries
- Intrastate lakes and ponds, streams, or wetlands not listed above that meet either the relatively permanent standard or the significant nexus standard
The new definition also codifies numerous exclusions from WOTUS, including waste treatment systems, prior converted cropland designated by the U.S. Department of Agriculture, ditches that do not carry a relatively permanent flow of water, artificial retention lakes or ponds, waterfilled construction or excavation pits, and swales or other erosional features characterized by infrequent, low-volume, or short-duration flow.
These new categories of WOTUS differ from the Obama-era and Trump-era WOTUS rules in key ways. Most notably, the new definition adopts both the "relatively permanent" standard (which the Trump-era rule primarily relied on) and the "significant nexus" standard (which the Obama-era rule primarily relied on). The agencies claim that using the "relatively permanent" standard is meant to provide clarity in "identifying a subset of waters that will virtually always significantly affect" traditionally navigable waters, while using the "significant nexus" standard fills gaps left by the "relatively permanent" standard and provides the agencies a degree of flexibility in determining whether certain waters are jurisdictional.
The new rule also does not establish a new framework for determining whether a water is navigable in the same way the 2015 and 2020 rules did. Instead, it incorporates the "relatively permanent" and "significant nexus" standards into the 1986 WOTUS framework. In taking this approach, the agencies appear to be attempting a balancing act between the 1986 WOTUS definition and the more expansive 2015 one. For example, the agencies note in their response to comments that the new rule actually "adds limitations" to the scope of the 1986 WOTUS definition while also adopting the 2015 definition's approach to identifying certain types of waters as "categorically jurisdictional." Even so, it seems that the Biden administration felt that the 2020 rule did not provide adequate protection to water resources. The technical report supporting the rule notes that even in the short period of time the prior rule was in effect, the number of water features found not to be protected under the CWA through jurisdictional determinations—including many that are now covered by the new WOTUS definition—increased substantially.
Finally, the new rule codifies several exclusions that had not been official under prior definitions. For example, the preamble to the 1986 WOTUS definition noted that "the agencies have generally not asserted jurisdiction over" certain water features but did not explicitly exclude them. The new rule's codification of the exclusions identified in the 1986 rule, along with other exclusions that reflect the agencies' long-standing practices, is meant to provide certainty as to when the CWA does not apply. Perhaps reflecting their desire to stick closely to the 1986 framework, the agencies did not retain many of the exclusions put in place by the 2015 and 2020 definitions.
The agencies assert repeatedly that the new rule will be easier to enforce because it largely adopts the 1986 regulatory framework that the agencies and regulated community were familiar with for almost 30 years. That remains to be seen. Technical consultants will still be in high demand to assess whether a specific water feature may meet the "significant nexus" standard. And since the rule is proposed to take effect 60 days after final publication in the Federal Register, it is too early to assess how enforcement of the new WOTUS definition—or the additional costs it might impose—will play out.
Meanwhile, the Supreme Court's upcoming decision in Sackett v. EPA could impose statutory limits on the definition of WOTUS. At oral argument in October, the federal government represented that the new WOTUS rule would be out by the "end of the year." That prediction barely came true. The Department of Justice dutifully notified the Court of the new rule's publication on December 30 and also responded to a question that Justice Kagan posed during oral arguments by representing that, from the government's perspective, the rule clarified which adjacent wetlands would qualify as waters of the United States. We do not know whether or how the new rule will influence the Court's decision.
Venable's Environmental Practice Group will continue to monitor implementation of the new WOTUS definition, the Court's Sackett ruling, political reactions on Capitol Hill, and what all that means for interested landowners.