A “Durable” Definition? EPA Issues Final Rule Revising Definition of WOTUS

The United States Environmental Protection Agency and Army Corps of Engineers (the Agencies) closed out 2022 by announcing a final rule that establishes a new definition of “waters of the United States” (WOTUS) for implementation of the Clean Water Act.^[1]  The Agencies, which previously indicated there would be a two-step regulatory process to defining WOTUS, appear to be proclaiming this to be its “durable” revision for the long term.  But will this definition of WOTUS get washed away like its predecessors?

Rule Overview

As previously discussed, in July 2021, the Agencies announced a two-step process to replace the 2020 Navigable Waters Protection Rule defining WOTUS for the Clean Water Act.^[2]  First, the Agencies indicated they would move quickly to restore the 1986-era regulations that were on the books, subject to limitations in Supreme Court decisions, before the “Clean Water Rule” of 2015.  Second, the Agencies would adopt a new, more expansive, and “durable” definition of WOTUS.  

The “Revised Definition of 'Waters of the United States'" rule, announced on December 30, 2022, comes over a year later.  The rule’s preamble, and related EPA announcements and fact sheets,^[3] suggest that the Agencies consider this to be their final “durable” rule for the future.  There are no references to a further, second “step.” 

The Agencies describe the new definition as grounded in the pre-2015 WOTUS framework, but updated to reflect the Supreme Court’s decisions since 2015, the latest science, and their technical expertise.^[4] The new definition of WOTUS provides jurisdiction over the following types of waterbodies:

1. Traditional navigable waters, territorial seas, and interstate waters;
2. Impoundments created in or from a WOTUS;
3. Tributaries that ultimately flow into traditional navigable waters, the territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or significant nexus standard;
4. Adjacent wetlands that meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water; and
5. “Additional Waters” – other lakes, ponds, streams, or wetlands that do not fit into one of the other enumerated categories are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.

Two Standards for Determining Jurisdiction of Tributaries, Adjacent Wetlands, and “Additional Waters”

The rule provides for two standards to be used to determine if tributaries, adjacent wetlands, or additional waters are jurisdictional: the relatively permanent and significant nexus standards. Both of these tests trace to the Supreme Court’s Rapanos decision from 2006.^[5] To meet the relatively permanent standard initially offered by Justice Scalia’s plurality in Rapanos, waterbodies must be relatively permanent, standing, or continuously flowing waters connected to traditional navigable waters, territorial seas, or interstate waters, or have a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters. Under the significant nexus test proposed by Justice Kennedy in his concurrence in Rapanos, a waterbody is subject to the Clean Water Act if such waterbody (alone or in combination with other waterbodies) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.

Eight Enumerated Exclusions

The final rule includes eight exclusions from the definition of WOTUS. A waterbody that meets any one of the below exclusions is not subject to permitting under the Clean Water Act. Exclusions 3-8 are new exclusions said to provide relief to agricultural communities.

1. Prior converted cropland, as defined by the U.S. Department of Agriculture to generally exclude wetlands that were converted to cropland prior to December 23, 1985.
2. Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
3. Ditches (including roadside ditches), excavated wholly in and draining only dry land, and that do not carry a relatively 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 that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing.
6. Artificial reflecting pools or swimming pools, and other small ornamental bodies of water created by excavating or diking dry land.
7. Waterfilled depressions, created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS.
8. Swales and erosional features (e.g., gullies, small washes), that are characterized by lowvolume, infrequent, or short duration flow.

The Agencies’ approach of adopting both the significant nexus and relatively permanent standards, coupled with a new list of exclusions, expands the scope of waters regulated under the Clean Water Act when compared to the 2020 Navigable Waters Protection Rule. However, this rule does not appear to go as far as the Obama Administration’s 2015 WOTUS rule. Still, there will be legal challenges to the Revised Definition of Waters of the United States Rule.

What About Sackett, And What Is A “Region” Anyway?

Implications of Sackett

The Agencies have struggled to promulgate a definition of WOTUS since Congress first deployed the term in what began the Clean Water Act in 1972. This final rule is no different. And the Sackett case^[6] currently pending before the U.S. Supreme Court may further complicate—or clarify—matters.  

On October 3, 2022, the U.S. Supreme Court heard oral arguments about whether the Ninth Circuit correctly affirmed that wetlands in Idaho are subject to jurisdiction under the Clean Water Act. In 2021, the Ninth Circuit rejected landowners Michael and Chantell Sackett’s argument that Justice Scalia's plurality opinion for determining the statute's jurisdiction over wetlands should govern, rather than Kennedy’s significant nexus test. In doing so, the Ninth Circuit affirmed that the Sacketts required a Clean Water Act permit to build a home on their property that contains wetlands. The Sacketts appealed and asked the Supreme Court to reject Kennedy’s significant nexus test in favor of a new test grounded in Scalia’s plurality opinion.

The Supreme Court has not yet issued its decision. During oral argument, many of the Justices appeared skeptical of the significant nexus test. Nevertheless, the argument revealed no apparent consensus for what test should control.  Moreover, newer Justices to the Supreme Court since the Rapanos decision in 2006 expressed renewed interest in import of CWA § 404(g), which mentions “wetlands adjacent” to navigable waters.  If the Supreme Court issues a decision later this year that undercuts the significant nexus test, the regulated community will be left questioning the enforceability of the Revised Definition of Waters of the United States Rule.

What do the Agencies Consider “In the Region”?

Even if the significant nexus test survives Sackett, questions will remain.  The new regulation to be codified at 33 C.F.R. § 328.3 seeks to implement Justice Kennedy’s test by asserting jurisdiction over “Tributaries … [t]hat either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of” traditional navigable waters.^[7] But Justice Kennedy wrote that “wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situation lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.”^[8]  The Agencies’ new regulations arguably convert a conjunctive requirement of three elements into a disjunctive requirement for only one. This is a criticism that opponents of the 2015 Clean Water Rule previously made and that commenters raised in response to the December 2021 proposed rulemaking.

In addition, the new regulatory text does not expressly define the “region” for comparison.  Will the Agencies determine significant nexus by considering a water or wetlands in conjunction with all waters “across the entire watershed of the nearest primary water,” as EPA did in the 2015 Clean Water Rule?^[9]  Or is the “region” contemplated by the new WOTUS definition merely those waters and wetlands on the same “reach of the stream that is of the same order”?^[10]  In 2019, the Agencies repealed the 2015 Clean Water Rule because they concluded that the broader meaning of “region” used to justify that rule was overbroad and exceeded the Agencies’ statutory authority under the Clean Water Act.^[11] 

Key Takeaways

• The Revised Definition of Waters of the United States Rule will become effective 60 days after it is published in the Federal Register. It has not yet been published, through the pre-publication version of the rule is available here.
• The Revised Definition largely attempts to restore and implement the Rapanos-era procedures and policies for determining WOTUS and Clean Water Act jurisdiction, but questions remain.
• The Supreme Court’s forthcoming decision in Sackett may shed light on how “durable” the Agencies’ new WOTUS definition will ultimately be.

For further information or questions about the changes to the “WOTUS” definition and potential implications for your operations, please contact Jonathan D. Brightbill (Partner, White Collar, Regulatory Defense & Investigations/Environmental Litigation), Madalyn Brown (Associate, Environmental), or your Winston relationship attorney.

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^{[1] EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections, EPA (December 30, 2022), https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-establishing-definition-wotus-and-restoring-fundamental.}  

^{[2] EPA and Army Announce Next Steps for Crafting Enduring Definition of Waters of the United States, EPA (July 30, 2021), https://www.epa.gov/newsreleases/epa-and-army-announce-next-steps-crafting-enduring-definition-waters-united-states.}

^{[3] Available at: https://www.epa.gov/wotus/revising-definition-waters-united-states.} 

^{[4] EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections, EPA (December 30, 2022), https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-establishing-definition-wotus-and-restoring-fundamental.}  

^{[5] Rapanos v. U.S., 547 U.S. 715 (2006). Read more about Rapanos in our prior briefing here: https://www.winston.com/en/winston-and-the-legal-environment/will-significant-nexus-again-define-waters-of-the-united-states.html}

^{[6] Michael Sackett et al. v. U.S. Environmental Protection Agency et al., case number 21-454.}

^{[7] Emphasis added.}

^{[8] Rapanos, 547 U.S. at 780 (emphasis added).}

^{[9] See 84 Fed. Reg. 56,644 (October 22, 2019).} 

^{[10] Id.}

^{[11] Id. at 56,645.}