Seeking Certainty: Redefining “Waters of the United States”

That very same day a challenge to the rule was filed in the Galveston Division of the United States for the Southern District of Texas by the State of Texas on behalf of several state agencies that have permitting and regulatory authority under the federal Clean Water Act and state legal authorities. The lawsuit asserts that the Final Rule is arbitrary and capricious, promulgated in excess of the agencies’ statutory authority, intrudes into the state sovereignty of the State of Texas in violation of the Administrative Procedure Act (APA), and violates the plaintiffs’ due process rights set forth in the APA and the Fifth Amendment to the Constitution of the United States. The plaintiffs request that the rule be vacated.

There will likely be many more lawsuits filed against this rule because of a recent decision of the Supreme Court which held that all such challenges to the rules defining WOTUS must be filed in the federal district courts, not the federal courts of appeal. See National Association of Manufacturers v. US Department of Defense, 136 S. Ct. 617 (2018). Further, this proposed redefinition was published as the U.S. Supreme Court is poised to decide another WOTUS case, Michael Sackett, et ux. v. Environmental Protection Agency, et al. (Sackett II) this term, which could impact the proposed redefinition before it ever becomes final. Sackett II addresses the jurisdictional scope of the CWA and the question of which waters are considered WOTUS for purposes of CWA Section 404 permitting. Additionally, the Biden Administration’s latest unified regulatory agenda indicates additional rulemaking on WOTUS is to be released for public comment by November 2023.

Unfortunately, it appears that this latest redefinition may not provide the clarity on the meaning of WOTUS needed by the regulated community, and often stakeholders. The rule is still complicated to understand and implement.

The Importance of This Rule

The Clean Water Act, enacted in 1972, prohibits the unpermitted discharges of pollutants into “navigable waters,” which is in turn defined as WOTUS. The question, however, is what is a “Water of the United States.” As the agencies note in the Preamble, the terms “navigable waters” and “Waters of the United States” are used in most “key programs” that implement the CWA, especially the CWA Section 402 (or NPDES permitting) program and the ACOE’s CWA Section 404 dredge and fill permitting program. Not only are permits required, but violations of the CWA come with significant penalties. Since 1972, thousands of NPDES permits and ACOE permits and Jurisdictional Determinations have been issued to persons, governments and agricultural operations. In addition, this rule is fundamental to the operation of the EPA’s SPCC oil spill prevention and control program, the CWA Section 303 water quality program, the CWA Section 401 tribal and state water quality certification program, the venerable EPA oil discharge regulations, and rule designating hazardous substances and reporting requirements, and even some aspects of CERCLA’s National Contingency Plan procedures (see 40 CFR Part 300).

Consequently, determining what constitutes WOTUS has far-reaching impacts, but defining the contours of WOTUS has been a challenge since the law was enacted. The 2023 redefinition reinstates the “1986” framework defining the reach and scope of navigable waters, with the agencies noting that the 1986 regulatory framework is informed by later Supreme Court decisions (such as Solid Waste Agency of Northern Cook County (SWANCC) v. US Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006)), as well as best available science, the practical experience of implementing the rule and its many iterations, and attempting to strike a balance between the 2015 Obama Administration Clean Water Rule, which expanded jurisdictional waters, with the Trump Administration’s narrowing of the federal protections. After the 2020 definition was vacated by a federal district court, the agencies promptly replaced the 2020 version with the “tried and true” and reasonably familiar 1986 rules, which were themselves based on actions taken by the EPA and the ACOE in the 1970s. These efforts to define and redefine “Waters of the United States” have taken place in the absence of any congressional effort to amend the CWA. If the Congress will not act, then the agencies must, and they have ample power to do so

The Provisions and Key Changes in the New Rule

The agencies’ stated goal is to “establish a clear and reasonable definition of WOTUS” and “reduce the uncertainty from constantly changing regulatory definitions.” Reinstating the original regulatory framework of the 1986 regulation was a good place to start. While that has been accomplished to a large degree, the redefinition also includes key changes that take a “more nuanced approach.”

Henceforth, for purposes of federal regulation, the “Waters of the United States” are defined in the rules codified at 33 CFR Part 328 and 40 CFR Part 120 as:

(a) (1) Traditional navigable waters, the territorial seas, or interstate waters, including interstate wetlands;

      (2) Impoundments of waters listed in (a)(1), other than impoundments identified under (a)(5) below.

      (3) Tributaries of waters identified in paragraph (a)(1) or (2)—

(i) That are relatively permanent, standing or continuously flowing bodies of water; or

(ii) What either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

      (4)  Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or flowing bodies of water identified in (a) or (2) of this section and with a continuous surface connection to those waters; or

(iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical or biological integrity of waters identified in paragraph (a)(1) of this section;

      (5) Intrastate lakes and ponds, streams or wetlands not identified in paragraphs (a)(1) or (a)(3) (i) of this section:

(i)  That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(1) of this section; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.

(b) The following are not “Waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (a)(5) of this section:

(1) Waste treatment systems;

(2) Prior converted cropland;
(3) Ditches excavated wholly in and draining only dry land and do not carry a permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water … which are used exclusively for purposes such as stock watering, etc.;

(6) Artificial reflecting or swimming pools or small ornamental bodies of water;

(7) Waterfilled depressions created in dry land incidental to construction activity … and until the construction or excavation is abandoned and the resulting body of water meets the definition of “Waters of the United States”;

(8) Swales and erosional features characterized by low volume, infrequent or short duration flow.

(c) These terms are now defined: “Wetlands”; “Adjacent”; “High Tide”; “Ordinary highwater mark”; “Tidal waters”; and “Significantly affect”—which is a long and elaborate definition. However, “Tributaries,” another very important term, is not defined. The agencies expressly rejected any comments advocating the definition of this term and stated that they are content to rely on their historic interpretation of the term.

This approach codifies the Rapanos tests by expanding jurisdiction to waters that meet either the “relatively permanent” or “significant nexus” standards for tributaries, streams, wetlands and intrastate lakes and ponds. In Rapanos, the Supreme Court failed to decide the case. Justice Scalia’s plurality opinion proposed a “relatively permanent” test, whereby WOTUS required “relatively permanent, standing or flowing bodies of water,” and for wetlands, a “continuous surface connection” to such permanent waters. For his part, Justice Kennedy’s concurring opinion proposed a framework—which has typically been applied—wherein the agencies evaluate whether waterbody bears “significant nexus” to a traditional navigable waterway.

Under the redefinition, a waterbody will be deemed to have a “significant nexus” if it has a “material influence” on the chemical, physical or biological integrity of traditional navigable waters, considering the following facts: (i) the distance from a traditional navigable water; (ii) hydrologic characteristics (frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow); (iii) the size, density or number of waters that have been determined to be similarly situated; (iv) landscape position and geomorphology; and (v) climate variables, such as temperature, precipitation and snowpack. On the other hand, waters that are “relatively permanent” or “continuously flowing” are also subject to CWA jurisdiction, but the proposed rule does not specify a minimum duration of flow to qualify for this standard.

The Long Preamble

A notable feature of the final rule is the long preamble (see pages 3004 – 3142), which prefaces the rule. It not only explains the rule but also contains an authoritative history of the development of these rules and the policy considerations that influenced the choices the agencies made. There is a comprehensive discussion of the significant nexus and continuous surface connection standards that were features of the plurality and concurring opinions in the 2006 Rapanos case, which culminated in the Chief Justice’s strong suggestion in Rapanos that the courts need a workable definition to permit an informed review.  The agencies have ample authority, under the CWA, to craft a rule which clearly and reasonably defines the scope of their authority to regulate wetlands. Also, acknowledging that these rules are complex, there is a separate discussion “on how to know when CWA permits are required,” which is devoted to making governmental access and guidance accessible to landowners. To determine if a regulated body of water is located on the landowner’s property, the agencies acknowledge these rules are very complicated, but the resources of the ACOE are available—at no cost—to landowners who need guidance and assistance.

The Preamble is very careful to make the case that these actions are consistent with the markers set down by the Supreme Court in the case of FCC v. Fox Televisions Stations, Inc., 556 US 502 (2009), by which agencies can justify an abrupt change in policy consistent with the APA. On the other hand, the sharp criticism of the plurality opinion in the Rapanos seems exiguous and may not have been necessary given the torturous and tangled history of this rulemaking effort.

Implementation Issues

The rulemaking addresses the viability of ACOE Jurisdictional Determinations (AJDs) made under the authority of a rule that has been superseded or vacated. In general, the AJDs that are valid for five years will be honored, but those that were made under the vacated 2020 rule may not be honored by the ACOE. In any case, the agencies suggest that the status should be discussed with the ACOE.

Although the agencies purport to revert to a prior regulatory framework, stakeholders should carefully review the new WOTUS rule to understand the nuances and important differences in the agencies’ previous approaches to implementing the definition.

In Conclusion

The new and revised definition is very complex, and the assertion of federal power over many bodies of water will be dependent on a case-by-case review, which will consume much time and effort, and the Supreme Court’s forthcoming decision in Sackett II case in which some of these concepts may add to the uncertainty. The regulated community and other interested parties should follow the actions of the courts and these agencies. At some point, it may be appropriate to conduct a focused regulatory audit of any operations subject to the CWA and the new WOTUS definition.