Final Rule Comes in Advance of Supreme Court’s WOTUS Decision in Sackett v. EPA
Yesterday, the Biden administration published a final rule (Final Rule) revising the definition of “waters of the United States” (WOTUS), which will go into effect on March 20, 2023. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) return to the pre-2015 regulatory definition of WOTUS, with amendments to reflect relevant Supreme Court decisions. With this rulemaking, the Biden administration seeks to provide a “durable definition” by returning to the pre-2015 framework and theoretically end the definitional uncertainty that has plagued industry (and the courts) for years. However, the U.S. Supreme Court’s pending decision in Sackett v. EPA may impact the durability of the Final Rule.
Context and Background of the Final Rule
The federal government’s authority under the Clean Water Act (CWA) extends only to “navigable waters,” which are defined as WOTUS. Accordingly, the status of a waterbody as WOTUS or non-WOTUS determines whether federal law applies. However, agencies have struggled to find a workable definition of WOTUS that will pass court muster because of the uncertain status of wetlands that are in some degree connected with navigable waters.
In the Rapanos v. United States decision in 2008, the Supreme Court could not agree on a majority standard for determining whether certain land was a jurisdictional wetland and properly considered WOTUS. Rapanos resulted in two competing standards:
- The four-justice plurality opinion authored by Justice Antonin Scalia set forth a “relatively permanent” flow standard. Under this definition, WOTUS covers “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a “continuous surface connection” to such waterbodies.
- Justice Anthony Kennedy concurred in the judgment but wrote separately to apply a “significant nexus” standard that examined the nexus to a traditional navigable waterway. Under this standard, WOTUS is based on “the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.”
The “significant nexus” standard is broadly understood to encompass more waterbodies than the relatively permanent standard. The result of the competing Rapanos standards was more litigation in federal courts over which standard applied and how each standard should be applied.
To resolve the uncertainty, in 2015, the Obama administration adopted the Clean Water Rule based on Justice Kennedy’s significant nexus standard. The Trump administration repealed that rule and, in 2020, issued the Navigable Water Protection Rule (NWPR), which adopted a much narrower definition of WOTUS based on Justice Scalia’s “relatively permanent” standard. The NWPR swiftly faced litigation and was stayed. After taking office, the Biden administration announced its intention to revise or replace the NWPR. While the agencies were working on a new rule, a district court vacated and remanded the NWPR.
The Once and Future WOTUS Definition (For Now)
The Final Rule essentially returns to the pre-2015 definition of WOTUS, with amendments and exemptions aimed to address Supreme Court precedent, longstanding exemptions and the agencies’ experience. The agencies describe the Final Rule as “generally familiar and implementable.”
The Final Rule defines WOTUS to include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands and “additional waters” (lakes, ponds, streams or wetlands that do not fit into the other categories but meet certain standards). Notably, the Final Rule incorporates aspects of both the significant nexus and relatively permanent standards; tributaries, adjacent wetlands, and “additional waters” are jurisdictional if they satisfy either the relatively permanent standard or significant nexus standard.
- The “relatively permanent standard” requires relatively permanent, standing or continuously flowing water connected to traditional navigable waters and waters with a continuous surface connection to such relatively permanent or traditional navigable waters.
- The “significant nexus” standard means waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical or biological integrity of traditional navigable waters, territorial seas or interstate waters.
The Final Rule also codifies the agencies’ longstanding determinations that prior converted cropland and waste treatment systems are excluded from WOTUS. It also adds exclusions for the following waterbodies, which are generally considered non-jurisdictional waters:
- 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 absent irrigation;
- artificial lakes or ponds created by excavating or diking dry land and used exclusively for stock watering, irrigation, settling basins or rice growing;
- artificial reflecting pools or swimming pools, and other “small ornamental bodies of water” created by excavating or diking dry land;
- waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purposes of obtaining fill, sand or gravel (unless and until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS); and
- swales and erosional features, characterized by low volume, infrequent or short duration flow.
The exemption for ditches is worded differently than in the preamble to the 1986 CWA regulations, which explained that “[n]on-tidal drainage and irrigation ditches excavated on dry land” were not considered WOTUS. After the Rapanos decision, agency guidance excluded from WOTUS “ditches (including roadside ditches) excavated wholly in and draining only uplands and that do not carry a relatively permanent flow of water.” The Final Rule formally adopts the agency guidance used post-Rapanos. Tidal ditches remain jurisdictional waters.
Pending Supreme Court Case and Future Scrutiny
While the Biden administration intends for the Final Rule to resolve WOTUS uncertainty, it remains to be seen whether the definition will hold up to judicial scrutiny.
The Sackett case, currently pending before the Supreme Court, creates significant uncertainty about the validity of the Final Rule. When the Supreme Court granted certiorari in Sackett, observers speculated that the conservative majority would embrace a narrower reading of WOTUS consistent with Justice Scalia’s plurality opinion in Rapanos. Instead, during the oral argument in October 2022, the justices focused on the concept of “adjacency” of wetlands. At that time, the EPA’s counsel told the Supreme Court that the agencies expected to publish a new rule by the end of the year. To avoid missing their self-imposed deadline, the agencies released a “pre-publication” version of the Final Rule on Dec. 30, 2022, before the official publication in the Federal Register in January 2023. After putting the pre-publication version on its website, the EPA filed a letter with the Supreme Court notifying it of the pre-publication version. Counsel for the petitioners filed a letter on Jan. 9, 2023, criticizing the agencies for not including a discussion of one aspect of the CWA’s legislative history in the preamble to the Final Rule. It is unclear the extent to which the justices will consider the Final Rule as they prepare their opinion(s).
If Sackett undermines the Final Rule’s use of the “significant nexus” standard to determine jurisdictional waters, the Biden administration may need to further amend its “durable” definition of WOTUS consistent with the Supreme Court’s opinion.
Even if Sackett does not disturb the Final Rule (or minimally disturbs it), litigation is extremely likely given public comments by industry groups. If past is prologue, district court litigation risks creating a patchwork of differing standards that will take time to be resolved by the federal appellate courts. In the interim, regulated entities, states and federal agencies will likely face difficulties and delays in implementation of water quality programs, particularly Clean Water Action Section 404 permitting for dredge and fill activities—potentially renewing interest in states developing their own such programs. The EPA will also likely face heightened congressional scrutiny.
For the foreseeable future, regulated entities will need to continue monitoring legal developments to understand the scope of federal jurisdiction and verify that federal agencies are applying the proper standards.
This document is intended to provide you with general information regarding the Biden administration's final rule defining "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.