Biden Administration Finalizes Waters of the United States Rule in Latest Move Involving Ongoing Water Quality Saga
January 5, 2023
Water Quality Law
On December 30, 2022 the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of the Army (“Corps”) (collectively referred to as the “Agencies”) under the Biden Administration released a pre-publication version of the final Revised Definition of Waters of the United States (“WOTUS”) rule (“2023 WOTUS Rule”) that will set forth a new definition of WOTUS. The final rule will become effective 60 days after it is published in the Federal Register (likely March 2023). The 2023 WOTUS Rule relies on the earlier 1986 WOTUS regulatory framework and associated case law, reinvigorating both the ambiguous “significant nexus” standard enunciated by Justice Kennedy in the U.S. Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006) and the “relatively permanent” standard concurrently articulated by a plurality of the Justices in Rapanos. The Agencies assert the 2023 WOTUS Rule is to “effectively and durably” protect the quality of the nation’s waters while balancing the needs of water users, e.g., farmers, ranchers, and industry.
Some members of the regulated community have already begun to publicly critique the rule, complaining of increased uncertainty over jurisdictional determinations when compared to the now-rescinded 2020 Navigable Waters Protection Rule (“2020 WOTUS Rule”). Also intriguing is the U.S. Supreme Court’s impending ruling in Sackett v. EPA, 142 S. Ct. 896 (2022); in that case, the Court is expected to address the legal sufficiency of the “significant nexus” standard, a critical component of the 2023 WOTUS Rule. Given that the new rule is expected to take effect around the same time the Sackett decision is issued, some are speculating that the 2023 WOTUS Rule may already require revision if the U.S. Supreme Court hands a victory to the Sacketts, or further modifies the scope of the “significant nexus” standard. Others are speculating that the timing of the 2023 WOTUS Rule’s issuance was to provide the Justices with a guiding framework upon which to base the Sackett decision.
The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the CWA. Navigable waters are defined in the CWA as “the waters of the United States, including territorial seas.” The definition of navigable waters is relevant to the scope of most Federal programs protecting water quality under the CWA –e.g., National Pollutant Discharge Elimination Systems (NPDES) under CWA section 402 and CWA section 404 prescribing permitting and the promulgation of water quality standards –because the CWA utilizes the term “navigable waters” in establishing the scope and applicability of those programs.
The Agencies have separate regulations defining WOTUS, but their interpretations have been similar and remained largely unchanged from 1977 to 2015 (referred to in the 2023 WOTUS Rule as the 1986 regulations). Since 2015, however, the Agencies revised the WOTUS definitions via two significant rule changes under differing political administrations (2015 Clean Water Rule, 80 FR 37054 [June 29, 2015]; 2020 Navigable Waters Protection Rule, 85 FR 22250 [April 21, 2020]) leading to frustration by the regulated population over regulatory uncertainty.
Then, on January 20, 2021, President Biden signed Executive Order 13990, directing all executive departments and agencies to review and, as appropriate, take action to address Federal regulations in order to improve public health, protect the environment, and ensure access to clean air and water. On June 9, 2021, after completing a review of, and reconsidering the record for, the 2020 WOTUS Rule, the Agencies announced their intent to revise or replace the rule with a new and “durable” WOTUS definition. The 2020 WOTUS Rule was subsequently vacated by two District Courts.
Jurisdictional Waters of the United States
The 2023 WOTUS Rule will provide jurisdiction over waterbodies that include traditional navigable waters (e.g., rivers and lakes), territorial seas, and interstate waters (collectively, the waters that appear in sections (a)(1) of the Corps and EPA’s respective regulations). The Agencies interpret WOTUS to include:
- traditional navigable waters;
- impoundments of WOTUS;
- jurisdictional tributaries–tributaries to traditional navigable waters, the territorial seas, interstate waters, or impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard;
- jurisdictional adjacent wetlands–wetlands adjacent to (a)(1) waters, wetlands adjacent to and with a continuous surface connection to, relatively permanent impoundments, wetlands adjacent to tributaries that meet the relatively permanent standard, and wetlands adjacent to impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard; and
- intrastate lakes and ponds, streams, or wetlands not identified above that meet either the relatively permanent standard or the significant nexus standard.
To determine jurisdiction for tributaries, adjacent wetlands, and additional waters, the 2023 WOTUS Rule applies two standards, drawing from the Kennedy and Scalia-penned opinions in Rapanos. Waters are jurisdictional if they meet either the “relatively permanent” or “significant nexus” standard.
The “relatively permanent” standard provides that waterbodies must be relatively permanent, standing, or continuously flowing waters connected to (a)(1) waters or waters with a continuous surface connection to such relatively permanent waters or to (a)(1) waters. The “significant nexus” standard considers waterbodies, such as tributaries and wetlands, jurisdictional based on their connection to, and effect on, larger downstream waters that Congress fundamentally sought to protect. A “significant nexus” exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.
Where a wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water, no further inquiry is required – the wetland is jurisdictional. The 2023 WOTUS Rule avoids specifying a particular distance when defining “adjacent” but, rather, provides that adjacent is “bordering, contiguous, or neighboring… [w]etlands separated from other WOTUS by man-made dikes, barriers, natural river berms, beach dunes, and the like are ‘adjacent wetlands’.” Notably, the 2023 WOTUS Rule will not require flow from the wetland to the jurisdictional water or from the jurisdictional water to the wetland. Thus, the Agencies will consider wetlands “adjacent” if one of three criteria is satisfied: (1) there is an unbroken surface or shallow subsurface connection to jurisdictional waters; (2) they are physically separated from jurisdictional waters by man-made dikes or barriers, natural river berms, beach dunes, and the like; or (3) their proximity to a jurisdictional water is reasonably close such that adjacent wetlands have significant effects on water quality and the aquatic ecosystem.
Where a wetland is adjacent to a covered water that is not a traditional navigable water, the territorial seas, or an interstate water, such as a tributary, the 2023 WOTUS Rule requires an additional showing. For that adjacent wetland to be considered jurisdictional, the wetland must satisfy either the “relatively permanent” standard or the “significant nexus” standard. According to the Agencies, that inquiry fundamentally concerns the adjacent wetland’s relationship to the relevant (a)(1) water and not the relationship between the adjacent wetland and the covered water to which it is adjacent. The adjacent wetland must have a continuous surface connection to a relatively permanent, standing, or continuously flowing water connected to an (a)(1) water or must either alone, or in combination with similarly situated waters, significantly affect the chemical, physical or biological integrity of an (a)(1) water.
Therefore to be jurisdictional under the 2023 WOTUS Rule, wetlands must meet both the definition of adjacent and either be adjacent to a traditional navigable water, the territorial seas, or an interstate water, or be adjacent to a covered water and meet either the “relatively permanent” or “significant nexus” standard as to a traditional navigable water.
The Agencies’ definition of WOTUS does not affect the longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act. Additionally, the final rule codifies eight exclusions from the definition of WOTUS in the regulatory text to provide consistency to a broad range of stakeholders. The exclusions are:
- Prior converted cropland.
- Waste treatment systems.
- Ditches (including roadside ditches), excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water.
- Artificially irrigated areas that would revert to dry land if the irrigation ceased.
- Artificial lakes or ponds.
- Artificial reflecting pools or swimming pools.
- Waterfilled depressions.
- Swales and erosional features that are characterized by low volume, infrequent, or short duration flow.
Some exclusions that appeared in prior iterations of WOTUS rules, or were accepted practice, have not been codified in the 2023 WOTUS Rule. For example, the 2020 WOTUS Rule categorically excluded a broader category of stormwater control features and groundwater recharge, water reuse, and wastewater recycling structures, which had been recognized as excluded by previous administrations though not as clearly codified. Despite public comment requests to carry these exclusions into the 2023 WOTUS Rule, the Agencies chose not to do so, stating “the agencies will continue to assess jurisdiction [for these features] under this rule on a case-specific basis.” The case specific inquiry considers whether a particular feature in question is excavated or created in dry land, the flow of the water, and “other factors.” These now eliminated exclusions have been critical in jurisdictional determinations for projects throughout the state, and project proponents may have less certain outcomes under the “case by case” consideration promoted by the 2023 WOTUS Rule.
Implementation of 2023 WOTUS Rule in CWA Section 404 Permitting Process and Approved Jurisdictional Determinations
As part of the regulatory process of implementing the 2023 WOTUS Rule, the Agencies sought to clarify how the rule will affect the regulated public who may be in the process of securing an approved jurisdictional determination (“AJD”) or implementing a project that has received an AJD. (See Current Implementation of WOTUS.) An AJD is a document provided by the Corps stating the presence or absence of WOTUS on a parcel or a written statement and map identifying the limits of WOTUS on a parcel, which then influences the scope of CWA section 404 permitting. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date.
As a general matter, the Agencies note that actions are governed by the definition of WOTUS in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed prior to the effective date of the 2023 WOTUS Rule and not associated with a permit action (also known as “stand-alone” AJDs) will not be reopened until their expiration date, unless one of the criteria for revision is met under Regulatory Guidance Letter 05-02 (e.g., new information warrants revision before the expiration date, or a District Engineer identifies specific geographic areas with rapidly changing environmental conditions that merit re-verification on a more frequent basis). However, the Corps states it will not rely on a 2020 WOTUS Rule AJD in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime (i.e., the 2023 WOTUS Rule).
For any currently pending permit action that relies on a 2020 WOTUS Rule AJD, or for any future permit application received that intends to rely on a 2020 WOTUS Rule AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in Regulatory Guidance Letter 16-01, whether the applicant would like to receive a new AJD completed under the new regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary jurisdictional determination (“PJD”) or no jurisdictional determination.
Downey Brand will be monitoring the development of the 2023 WOTUS Rule and will assist its clients on navigating new requirements to ensure continued compliance. We are happy to answer any questions.
 See 33 C.F.R. § 238.3, subd. (a)(1); 40 C.F.R. § 120.2, subd. (1)(i).