Here We WOTUS Again
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Here We WOTUS Again

Brownstein Client Alert, Aug. 31, 2023

On Aug. 29, 2023, the Biden administration issued a prepublication version of yet another final Clean Water Act rule (“Conforming Rule”) revising the definition of “waters of the United States” (“WOTUS”) in response to the U.S. Supreme Court’s decision in Sackett v. EPA, published May 25, 2023. With this Conforming Rule, the U.S. Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps,” and collectively, “the Agencies”) will amend the administration’s prior Jan. 18, 2023, “Revised Definition of ‘Waters of the United States’” rule (“2023 Rule”) because the Sackett decision invalidated parts of the 2023 Rule.

What Will WOTUS Be Now?

The Conforming Rule makes the following amendments to the 2023 Rule:

1. “Significant Nexus” Test No More: The Conforming Rule strikes references to the “significant nexus” test definition and its application to jurisdictional tributaries; wetlands; and intrastate lakes, ponds and wetlands. It also clarifies that interstate wetlands are not within the “interstate waters” category of jurisdictional waters.

2. Revised Adjacency Test: The Conforming Rule also revises the adjacency test. Previously, the 2023 Rule defined “adjacent” as “bordering, contiguous, or neighboring,” and explained that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are ‘adjacent wetlands.’” The Conforming Rule strikes that language and instead simply defines “adjacent” as “having a continuous surface connection.” Among other impacts, man-made barriers appear capable of defeating adjacency.

3. Embracing “Relatively Permanent”: Under the Conforming Rule, WOTUS includes tributaries only if they are “relatively permanent, standing or continuously flowing bodies of water”; and wetlands that are adjacent to “relatively permanent, standing or continuously flowing bodies of water identified [as a jurisdictional impoundment or tributary] and with a continuous surface connection to those waters,” and intrastate lakes and ponds that are “relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to [traditional interstate waters or jurisdictional tributaries].”

The Conforming Rule incorporates all remaining aspects of the 2023 Rule. There are no changes made to the inclusion of impoundments as jurisdictional waters or the exclusions from the 2023 Rule. Likewise, the Conforming Rule maintained the definition of wetlands, although it changed the definition of adjacent wetlands. The Conforming Rule will have an effective date once published.

Why Do We Have Yet Another Clean Water Act Rule?

Seasoned Clean Water Act (“CWA”) practitioners and regulated parties have been wrangling with rule changes to the WOTUS definition and scope of federal jurisdiction since the Obama administration took on updating the rule in the 2000s. The most recent three presidential administrations (Obama, Trump, Biden) have sought to expand or contract the WOTUS definition based on a push and pull between the two tests articulated in the (in)famous dredge-and-fill case, Rapanos v. United States, 547 U.S. 715 (2006)—before Sackett, the most recent word from the Supreme Court regarding the scope of CWA jurisdiction over wetlands.

In 2015, the Obama administration adopted a WOTUS rule (the “Clean Water Rule”) based on Justice Anthony Kennedy’s “significant nexus” standard from Rapanos, which he advanced in his concurrence. In that case, the Supreme Court failed to create a bright line test for determining which land qualified as jurisdictional wetland and thereby subject to the Agencies’ authority under the CWA. Justice Antonin Scalia offered a “relatively permanent flow” standard in his four-justice plurality opinion; “the phrase [WOTUS] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. at 739. Justice Kennedy concurred and offered the “significant nexus” test that looks for “the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Id. at 779-80. The Clean Water Rule, which was largely seen as expanding the jurisdictional scope of the CWA by including more waterbodies as WOTUS, was promptly challenged and stayed in some states, creating a jurisdictional quagmire.

The Clean Water Rule was repealed by the succeeding Trump administration and replaced in 2020 with the Navigable Water Protection Rule (“Trump CWA Rule”). The Trump CWA Rule sought to narrow the scope of the CWA by defining WOTUS based on Justice Scalia’s “relatively permanent flow” standard from Rapanos. The Trump CWA Rule was challenged in court and ultimately vacated and remanded to the Agencies when the Biden administration assumed office and refused to defend it. Instead, the Biden administration sought to revise or replace the Trump CWA Rule.

In an effort to create a “durable” definition of WOTUS, the Agencies then published the 2023 Rule, returning the definition of WOTUS to the pre-2015 version with updates based on both Rapanos standards. Under the 2023 Rule, tributaries, adjacent wetlands, and “additional waters” were jurisdictional if they satisfy either the “relatively permanent standard” or “significant nexus” standard. The 2023 Rule also codified exclusions for prior converted cropland and waste treatment systems and added several more exclusions. But like the prior rulemaking efforts, the 2023 Rule was challenged and a patchwork of injunctions against it have been issued in several states, causing the pre-2015 WOTUS definition and associated guidance to be implemented in the meantime.

In May 2023, only two months after the “durable” 2023 Rule went into effect, the Supreme Court released its opinion in Sackett, rejecting the “significant nexus” test in favor of the “relatively permanent” standard. Writing for a six-member majority, Justice Alito stated: “[T]he Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” Id. at 1336. The Supreme Court further concluded that interstate wetlands are not automatically “interstate waters” because the definition of “interstate waters” refers to “open waters” rather than wetlands. Id. at 1337.

Accordingly, the Agencies respond now by amending the WOTUS definition in the 2023 Rule to delete invalidated references to the “significant nexus” test, revise the definition of “adjacent” and incorporate other updates conforming to this recent Sackett opinion.

The Agencies are issuing this final Conforming Rule in lieu of a draft rule ordinarily required under the Administrative Procedure Act (“APA”), meaning they are not soliciting public comment. The Agencies maintain that there is “good cause” to forego public notice and comment procedures under the APA and that the Conforming Rule should be immediately effective because it “merely conforms” with the Sackett opinion and does not impose any burdens on the regulated community that do not already exist by way of Sackett.

What Is Next for Wetlands Under the CWA?

The Conforming Rule does not resolve all uncertainty. Those potentially impacted by the CWA’s jurisdiction should be aware of the following and continue to vigilantly monitor court and agency updates:

  • Due to the litigation stay against the 2023 Rule in 27 states, the Agencies will continue to interpret WOTUS in these states consistent with the pre-2015 definition and Sackett. It is unclear if or when the Conforming Rule will become operative in these states. The Agencies will implement the Conforming Rule in the remaining 23 states and the District of Columbia and U.S. Territories.
  • In response to Sackett, the Corps stopped issuing Approved Jurisdictional Determinations (“AJDs”), both while Sackett was pending and after the decision was issued. In the EPA press release announcing the Conforming Rule, the Assistant Secretary of the Army for Civil Works stated that “[w]ith this final rule, the Corps can resume issuing [AJDs] that were paused in light of the Sackett ” In general, the Corps’ actions on AJDs are based on the WOTUS definition at the time the Corps takes an action. Previously, when the Trump CWA Rule was revoked, the Corps issued guidance stating that it would not reconsider previous permit decisions made under the Trump CWA Rule, and pending AJDs would be subject to the pre-2015 regulatory definition. To the extent the Conforming Rule is challenged, as discussed below, it is not inconceivable that the Corps will again pause issuance of AJDs.
  • While the Supreme Court intended Sackett to provide clarity over the CWA’s jurisdictional reach, many questions remain as to how the Sackett decision will be applied for water bodies and wetlands. Landowners may still need to engage an expert or pursue an AJD to determine if, for example, a wetland is adjacent to a “relatively permanent, standing or continuously flowing body of water” or whether it has a continuous surface connection to an impoundment of WOTUS or a tributary. Questions about whether temporary breaks in a surface connection sever federal jurisdiction, particularly in the arid West, remain unresolved.
  • The Sackett decision turns back to the states a bigger role in regulating waters that may no longer qualify as WOTUS. In response, states may define their jurisdiction in a more expansive manner, taking authority over waters that may previously have been federally regulated by the Agencies. For instance, states like California have taken significant steps to create state-based rules for dredge and fill permitting programs. How those programs will be implemented, and how regulatory enforcement for violating those rules will proceed, are in the early stages. Colorado is also contemplating how best to regulate and enforce against discharges to waters previously regulated by the Agencies, and it has held a series of stakeholder meetings as it prepares a legislative recommendation.
  • EPA recently issued a draft rule revising the CWA section 404 assumption regulations on Aug. 14, 2023. As states look to regulate waters within their boundaries no longer considered WOTUS and build out state regulatory programs, they may also consider assuming 404 permitting authority from the Agencies as part of that effort. The proposed section 404 rule seeks to provide greater clarity to states and tribes about requirements for assuming section 404 program responsibility, reducing barriers to assumption, and making technical corrections. It also includes a procedure to determine which waters and wetlands would be regulated by the state or tribe, and which would remain under Corps’ administrative jurisdiction. However, a significant barrier to states assuming administration of section 404 is cost, and EPA’s proposed rule continues to prohibit partial section 404 assumption. Comments are due on this rule by Oct. 13, 2023.
  • As with all prior WOTUS rulemakings, the Conforming Rule will almost certainly face litigation from a host of interested parties, further complicating the WOTUS landscape until such challenges are resolved. Challenges may involve both procedural claims under the APA and substantive claims centered on whether the Conforming Rule accords with the Sackett While the Biden administration sought a “durable” WOTUS rule, first with the 2023 Rule and now with the Conforming Rule, litigation may continue to make “durability” an elusive concept for the Agencies.

For more information, guidance, and updates on the Conforming Rule, please contact Brownstein.

This document is intended to provide you with general information regarding the definition of "waters of the United States." The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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