New Year, New WOTUS Rule

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EPA and the US Army Corps of Engineers announced on Friday, December 30, 2022, the final, pre-publication version of a “Revised Definition of ‘Waters of the United States’ [“WOTUS”]” rule. This 2022 WOTUS Rule will become effective 60 days after its publication in the Federal Register. The new Rule purports to return to the pre-2015 definition of WOTUS which was implemented by the agencies for over 40 years, and, according to an EPA fact sheet on the new Rule (available here), prioritizes “practical, on-the ground implementation by providing tools and resources to support timely and consistent jurisdictional determinations[.]”

The Clean Water Act (CWA), passed in 1972, does not define WOTUS, so from passage of the statute until 2001, agency interpretation of what WOTUS meant was set out by regulation and remained largely unchanged. In 2001, the U.S. Supreme Court interpreted the phrase in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and narrowed the definition to exclude intrastate waters used as habitat for migratory birds. 531 U.S. 159 (2001). The term was further explored (not to say clarified) in Rapanos v. United States, where the Supreme Court issued a 4-1-4 plurality opinion attempting to capture what water bodies are properly regulated under the CWA. 547 U.S. 715 (2006). Notably, it was Justice Kennedy’s standalone concurrence in Rapanos that defined WOTUS practice for the next decade. Kennedy opined that those waters with a “significant nexus” to traditionally navigable waters must necessarily fall within the jurisdiction of the CWA, regardless of whether they are relatively permanent or bear a surface connection with adjacent jurisdictional waters. 

Justice Kennedy’s “significant nexus” test predominated jurisdictional determinations until 2015, when President Obama’s administration adopted the “Clean Water Rule,” significantly expanding the regulatory definition of WOTUS. The Clean Water Rule was immediately challenged by a multitude of litigants, resulting in a number of federal court decisions that stayed the application of the rule in a number of jurisdictions, effectively creating a patchwork of applicable WOTUS definitions that varied based on geography. The Trump administration issued a repeal rule in 2019, which took the WOTUS definition back to pre-2015 regulations (and the Rapanos “significant nexus” standard), and then followed the repeal with the issuance of the Navigable Waters Protection Rule (“NWPR”) in 2020. The NWPR attempted to codify not the Kennedy opinion from Rapanos, but the narrower plurality opinion with which Kennedy joined in the judgment. Among other changes in the law, the NWPR purported to categorically exclude from CWA jurisdiction ephemeral streams and features, regardless of whether they had a “significant nexus” with traditionally navigable waters. The NWPR was challenged in courts as well.

The 2022 WOTUS Rule retains the significant nexus test for determining whether wetlands adjacent to more traditional navigable waters are jurisdictional for purposes of the CWA, and also emphasizes the importance of the “relatively permanent” test. As the name indicates, the “relatively permanent” test requires regulators to determine whether waterbodies are “relatively permanent, standing, or continuously flowing waters” connected to more traditional navigable waters. See, EPA Fact Sheet. A waterbody that meets either the significant nexus test or the relatively permanent test is likely to be treated as a WOTUS, and subject to EPA and Corps permitting jurisdiction under the new Rule.

The 2022 Rule also codifies and defines a number of explicit exclusions from the definition of WOTUS:

• Prior converted cropland
• Waste treatment systems
• Ditches
• Artificially irrigated areas
• Artificial lakes or ponds
• Artificial reflecting pools or swimming pools
• Waterfilled depressions
• Swales and erosional features

These exclusions were, in large part, included as part of the NWPR.

If past is prologue, we can expect that the 2022 WOTUS Rule will be challenged by some stakeholders. Environmental advocacy groups in particular are likely to be disappointed with any perceived diminishment in protections offered by the Obama administrations’ Clean Water Rule. Moreover, the Supreme Court is poised to issue a ruling this year in Sackett v. EPA, a case argued in October 2022 which centers on precisely the question of how regulators should interpret WOTUS. Depending on the outcome of that case, the 2022 WOTUS Rule may be altogether moot. Regardless, for any near-term projects potentially impacting wetlands, it is worth considering the pre-publication 2022 WOTUS Rule and its potential impacts while the likely drama continues to unfold. 

Nexsen Pruet’s Environmental Team is experienced in assisting clients with Clean Water Act permitting and compliance matters. If you have any legal needs or questions related to the New 2022 WOTUS Rule, or other Clean Water Act Matters, we stand ready to assist.