By: Beth Hesse
On December 30, 2022, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) announced a final rule defining “waters of the United States” based on recent Supreme Court decisions, the science, and the agencies’ technical expertise. The December 30, 2022 rule clarifies key regulatory definitions under the Clean Water Act; however, certain definitions, such as jurisdictional wetlands, remain up in the air due to pending judicial challenges, namely Sackett v. EPA. For those with sites near navigable waters, potential implications may require the development of Spill Prevention, Control, and Countermeasure (SPCC) Plans or obtaining Section 401, 402, or 404 permits, specifically where new activities are proximal to certain wetlands.
In short, the final rule realigns the definition of WOTUS to the pre-2015 definition, revising the definitions most recently set in the 2020 Navigable Waters Protection Rule (2020 Rule).
On December 7, 2021, the EPA and the U.S. Army Corps of Engineers published a proposed rule defining the scope of waters protected under the Clean Water Act – “waters of the United States.” The agencies received and considered over 114,000 written public comments in developing the final rule defining WOTUS, which will be published in the Code of Federal Regulations (CFR) – 33 CFR 328.3 and 40 CFR 120.2.
Debate over what is considered WOTUS is not new. As noted in The Water Report, “successive administrations have proposed rules [attempting to define WOTUS], which have led to massive litigation continuing to this day.” In a seminal case, Rapanos v. United States in 2006, the Supreme Court of the United States (SCOTUS) was split (4-1-4) and unable to obtain a majority on whether certain wetlands (in this case, three wetland areas in Michigan were front and center) qualify as WOTUS under the Clean Water Act. Subsequently, the Obama Administration attempted to establish a definition of WOTUS that was more expansive than the pre-2015 definition; the Trump Administration rescinded the 2015 definition via its 2020 Rule, which was rescinded by the Biden Administration.
The currently pending Sackett v. EPA decision from SCOTUS questions again whether certain wetlands are considered to be WOTUS given the complexity of the determination criteria.
The agencies’ definition of WOTUS establishes jurisdiction over specific types of waterbodies to be protected under the Clean Water Act. The rule accounts for regional differences in waters in determining whether waters are covered under the rule. The categories of WOTUS include the following (primary features of each are also included):
- Traditional Navigable Waters (TNW): Large rivers or lakes that could be used in interstate or foreign commerce, as well as waterbodies affected by tides.
- Territorial Seas: Seas that extend three miles out to sea from the coast.
- Interstate Waters: Waters such as streams, lakes, or wetlands that cross or form part of state boundaries.
- Impoundments: Impounded bodies of water created in or from WOTUS, such as reservoirs or beaver ponds.
- Tributaries: Branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into TNW, territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.
- Adjacent Wetlands: Wetlands that are next to, abutting, or near other jurisdictional waters or behind certain natural or constructed features. They are most often within a few hundred feet of jurisdictional waters. Adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to a TNW, territorial sea, or interstate water.
- Additional Waters: Lakes, ponds, streams, or wetlands that do not fit into the categories above. They are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.
As noted above, jurisdiction over several categories of waters is based on the application of two standards – relatively permanent standard and significant nexus standard. This approach replaces the 1986 regulation’s broad Commerce Clause basis for jurisdiction.
- The Relatively Permanent test identifies a subset of waters that will almost always significantly impact paragraph (a)(1) waters. To meet this standard, the waterbody must be relatively permanent, standing, or continuously flowing waters connected to paragraph (a)(1) waters or waters with a continuous surface connection to such relatively permanent waters or paragraph (a)(1) waters.
- The Significant Nexus test clarifies when certain waterbodies, such as tributaries and wetlands, are subject to the Clean Water Act, based on their connection to and effect on larger downstream waters. A significant nexus exists if the waterbody (alone or in combination) “significantly affects” the chemical, physical, or biological integrity of TNW, territorial seas, or interstate waters. The significant nexus test is a large part of the Sackett case and, depending on how SCOTUS rules, the ultimate fate of EPA’s rule remains vulnerable.
The agencies acknowledged the longstanding activity-based permitting exemptions provided to the agricultural community by codifying eight exclusions, as follows:
- Prior converted cropland
- Waste treatment systems
- Artificially irrigated areas
- Artificial lakes or ponds
- Artificial reflecting pools or swimming pools
- Waterfilled depressions
- Swales and erosional features
What Does This Mean?
In short, the final rule realigns the definition of WOTUS to the pre-2015 definition, revising the definitions most recently set in the 2020 Rule. The current definition applies a more stringent definition of WOTUS and expands the federal jurisdiction over certain waters. For those with sites near navigable waters, there are potential implications requiring the development of SPCC Plans or obtaining Section 401, 402, or 404 permits, specifically where new activities are proximal to certain wetlands.
The agencies conducted an economic analysis for the final rule to analyze the potential costs and benefits associated with this final action, noting that the rule in and of itself does not impose costs or benefits, but rather actions taken under existing programs relying on the definition of WOTUS. Based on a comparison of the current status quo, the agencies concluded there are de minimis costs and benefits associated with this final rule.
This rule will not affect any of the exemptions, including exemptions from Section 404 permitting requirements provided by Section 404(f), such as those for normal farming, ranching, and silviculture activities (United States Code [USC]—33 USC 1344(f); 40 CFR 232.3; 33 CFR 323.4). This rule will also not affect the existing statutory or regulatory exemptions or exclusions from Section 402 of the National Pollutant Discharge Elimination System (NPDES) permitting requirements, such as for agricultural stormwater discharges and return flows from irrigated agriculture, or the status of water transfers (33 USC 1342(l)(1), (l)(2); 33 USC 1362(14); 40 CFR 122.2, 122.3(f)).
The final rule is effective 60 days following its publication in the Federal Register. If you have concerns about whether or not your project is impacted by WOTUS, as defined in the final rule under the Clean Water Act, please contact EHS Support for additional details and assistance.
Public Rule Overview:
The agencies will host a public final rule overview webinar on January 19, 2023, from 12 pm – 1 pm Eastern Time. Note that registration capacity is limited, but the webinar will be recorded and posted on EPA’s website after the event. https://www.zoomgov.com/webinar/register/WN_qa83_BW5TAWdMLNMaYdDoQ
Questions: To discuss concerns regarding the new WOTUS definition, please contact Beth Hesse.