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Something Old or Something New?: Navigating the Biden Administration’s Latest Move on Defining “Waters of the United States”

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The Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Army Corps”) delivered on their commitment to issue a new rule defining “waters of the United States” (“WOTUS”) by the end of 2022, releasing a pre-publication version on the final business day of 2022. The new rule is effective 60 days after it is published in the Federal Register. This is the third time in seven years that the agencies have revised the definition in ways that have far-reaching implications for everything from infrastructure and construction projects to farms and private land. While the agencies state that this rule is generally a return to their longstanding regulatory regime, there are a number of important changes, and merely assuming that the new rule will be implemented similar to historic practice could create risks for landowners, project developers, and a wide range of other stakeholders seeking to undertake activities in areas subject to federal jurisdiction.

The public should also be ready for continued regulatory uncertainty. Although the agencies express hope that this version will be a “durable” approach to the decades-long debate of just how far federal jurisdiction can reach over wetlands and waterbodies, they are not done making changes: The Biden administration’s latest unified agenda acknowledges an additional rulemaking on the WOTUS definition to be released for comment by November 2023. Some changes to the government’s approach to WOTUS might be required, as the Supreme Court is expected to issue a ruling on WOTUS later this year in Sackett v. United States1, potentially providing additional color about the scope of the agencies’ statutory authority and adding further regulatory and legal uncertainty. And this rule will almost certainly be challenged in court. As a result, these regulatory waters will likely remain murky in the short term.

Background – What counts as WOTUS and why does it matter?

The Clean Water Act prohibits unpermitted discharges of pollutants from certain sources to “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.” The Clean Water Act carries significant potential penalties, so anyone whose activities might introduce fill material into a WOTUS by, for example, crossing a small stream with a bulldozer during a construction project or filling a wetland to build over it may need to get Army Corps permission in a process that can be time consuming and expensive. What counts as a WOTUS also has relevance to other provisions and programs under the Clean Water Act, including discharge permits, water quality standards, total maximum daily loads, water quality certifications, and enforcement actions brought by EPA for illegal discharges.

Determining what counts as a WOTUS is not always straightforward. The agencies explain that the new rule primarily follows the WOTUS framework from their 1986 regulations, as informed by subsequent Supreme Court decisions, “best available science,” and the agencies’ experience in implementing the rule over many years. But as the intervening decades have shown, interpreting what the Supreme Court has said, and deciding how scientific evidence should inform legal and policy decisions about the reach of federal jurisdiction, have made this a fertile ground for disagreement and litigation.

For example, the Court issued a fractured opinion in Rapanos v. United States2 in 2006 that yielded two different tests for WOTUS, neither of which garnered a controlling majority: four justices held that WOTUS encompasses only “relatively permanent, standing or continuously flowing bodies of water” (such as streams, rivers, and lakes) and wetlands with a “continuous surface connection to [such waters],” with another justice defining WOTUS to mean waters with a “significant nexus” to traditional navigable waters. The new rule resurrects and then incorporates many aspects of the agencies’ 2008 Rapanos Guidance, which they developed after the 2006 Rapanos decision to explain how the agencies would determine jurisdiction over waters that met either the relatively permanent water standard or the significant nexus standard.

The new rule also seeks a middle ground between other recent WOTUS rulemaking efforts. The Obama administration’s 2015 Clean Water Rule increased what waterbodies were categorically jurisdictional and what waterbodies would be jurisdictional based on the Rapanos significant nexus standard. The Trump administration’s 2020 Navigable Waters Protection Rule took a narrower view, delimiting jurisdiction primarily based on the relatively permanent standard from Rapanos and categorically excluding certain waterbodies. Both rules were ultimately stayed or enjoined through litigation before being repealed and replaced through notice-and-comment rulemaking. The new rule is the Biden administration’s attempt at a durable definition, advertised as “consistent with the pre-2015 regulatory regime.”

Key Changes in the New WOTUS Rule

Although the rule returns to the pre-2015 regulatory regime in a number of ways, it also includes key changes that nudge the regulatory pendulum toward a more expansive assertion of federal jurisdiction than the pre-2015 regime. The agencies describe the rule as taking a “more nuanced approach,” but in some ways, that nuance injects more uncertainty for regulated entities. Even when using familiar terms from the pre-2015 regulations, the agencies introduce some definitional changes or apply those terms in ways that can have practical implications.

Both Rapanos Tests Explicit in the Rule: The new rule codifies both Rapanos tests by inserting language extending jurisdiction to waters that meet either the relatively permanent standard or the significant nexus standard for tributaries, streams, wetlands, and intrastate lakes and ponds. For the most part, the application of these standards will adhere closely to historic practice under the Rapanos Guidance, but there are some changes.

For example, a water now has a “significant nexus” if it has a “material influence” on the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters. This replaces the standard articulated in the agencies’ proposed rule, derived from the Rapanos Guidance, that would have based jurisdiction whenever an effect was “more than a speculative or insubstantial effect.” However, the agencies also assert authority to aggregate all “similarly situated” waters and their adjacent wetlands in a catchment when determining if there is a “material influence.” The rule defines a catchment to be “the area of the land surface that drains to a specific location for a specific hydrologic feature,” and this area in many instances may be larger than the area as assessed under the Rapanos Guidance in making a similar inquiry. The net effect is likely to increase the number of waterbodies and wetlands deemed jurisdictional. The agencies have also included a number of specific factors that they will consider when determining whether a water significantly affects traditionally navigable waters, with distance and hydrology being the most important factors.

The rule also asserts jurisdiction over waters meeting the relatively permanent standard — i.e., those that are “relatively permanent” or “continuously flowing.” But the rule does not provide any minimum duration of flow to qualify. Although waterbodies with flowing or standing water present for only a short duration in direct response to precipitation are not jurisdictional, the rule does not require that relatively permanent flows come from particular sources or for any particular duration or season of the year. This can be problematic when flow is driven by water management practices that are common in many agricultural areas, and the preamble of the new rule explicitly states that relatively permanent waters can include ones where the flow is driven by such practices. Moreover, the agencies also assert that relatively permanent flows can exist based on multiple back-to-back storm events in some parts of the country with monsoon-like rainfall.

Codified Exclusions: The new rule retains two longstanding exclusions for prior converted cropland and waste treatment systems, with additional clarification that the prior converted cropland exclusion may be inapplicable if an area is no longer available for the production of agricultural commodities. The rule then codifies several exclusions for features that have been generally considered non-jurisdictional. Two that build on similar language from the Rapanos Guidance are ditches excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water, and swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow. Other waterbodies specifically excluded in the new rule are artificially irrigated areas; certain artificial lakes or ponds; artificial reflecting or swimming pools or other small ornamental waterbodies; and construction-related waterfilled depressions and excavation-related pits created or excavated in dry land until construction or excavation operations cease.

Aggressive Legal Analysis in Preamble: One notable aspect of the new rule, which is not codified in the actual regulatory text but which is prominently displayed in the preamble, is the energy the agencies spend defending the legal basis for their rulemaking and criticizing some of the Supreme Court’s prior WOTUS-related opinions and the Trump administration’s Navigable Waters Protection Rule. It is not surprising that the agencies seek to distinguish their new rule from the rule it replaces in order to provide a reasoned basis for doing an about-face on WOTUS jurisdiction. However, the preamble is notable for the sharpness of its criticism of the Supreme Court’s plurality opinion in Rapanos as a potential limit on the scope of federal jurisdiction. The agencies spill much ink criticizing the four-Justice plurality opinion from Rapanos, as a matter of statutory text, purpose, and application of the Supreme Court’s own prior WOTUS-related decisions. The Supreme Court itself may be one of the intended audiences, given the Court’s impending decision in Sackett.

The preamble recognizes that the Navigable Waters Protection Rule took a more narrow view of federal jurisdiction, leaving more waterbodies beyond federal reach and subject only to state and tribal regulation. Although the agencies recognize the importance of federalism and the role that states and tribes play in regulating waters within their jurisdiction, the agencies justify expanded federal jurisdictional in light of inaction by states and tribes to play a gap-filling role under the Trump administration’s rule. In particular, most states and tribes did not, within the one year that the Navigable Waters Protection Rule was in effect, create new or strengthen existing regulatory programs in order to regulate those waterbodies left outside of federal jurisdiction under the Trump-era rule.

Less surprising are the agencies’ efforts to ground certain aspects of the rule in concerns related to climate change and environmental justice — considerations at the heart of many of the Biden administration’s initiatives. Specifically, the agencies assert that the new rule furthers climate resiliency by expanding federal protection over more waterways and avoids disproportionate health impacts to vulnerable populations by eliminating the Navigable Waters Protection Rule’s categorical exclusion for ephemeral streams.

A Preemptive Strike

The Biden administration’s rush to release this rule before 2022 closed, and its lengthy legalistic preamble, could be explained as a preemptive strike before the Supreme Court issues a ruling in the pending Sackett v. United States case. In Sackett, a case that involves the scope of federal jurisdiction over wetlands adjacent to a tributary to a navigable lake, two landowners have asked the Court to apply the relatively permanent test from Rapanos or to otherwise devise a test that comports more closely with the Clean Water Act’s jurisdictional limits. The new WOTUS rule might be understood as an effort to clarify preemptively issues, particularly some presented during Sackett’s oral argument, regarding the jurisdictional status of adjacent wetlands. In the preamble, the agencies highlight that for adjacent wetlands, the concepts of adjacency and significant nexus create “separate, additive limitations” to ensure that adjacent wetlands have the legally required relationship to other waters before they are deemed jurisdictional. Whether the agencies can adjust to the Sackett decision through minor tweaks, or whether that decision will prompt another wholesale revision to the new WOTUS rule, will depend on how broadly the Supreme Court sweeps in its own ruling, which is expected by June 2023.  The agencies may use their second-stage proposed rulemaking, expected in late 2023, to make those adjustments.

Key Take-Aways

The regulated community, including landowners and project proponents that may need Clean Water Act permits, should carefully review the new WOTUS rule, as it differs in some important ways from the agencies’ previous approaches to regulation. In addition, these groups should be prepared for further uncertainty and changes as the agencies determine how they will implement this new approach, how they will respond to the upcoming Sackett decision and other potential court challenges, and how they will move forward with the additional planned rulemaking.

1 Sackett v. Env’t Prot. Agency, 8 F.4th 1075 (9th Cir. 2021), cert. granted, 142 S. Ct. 896 (U.S. Jan. 24, 2022) (No. 21-454).

2 547 U.S. 715 (2006).

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.