EPA and Army Corps Finalize Clean Water Act Jurisdiction Rule Ahead of Upcoming Supreme Court Decision
At the close of 2022, the EPA and the Department of the Army took the latest step in the ongoing efforts to define the extent of Waters of the United States (WOTUS) subject to federal Clean Water Act (CWA) jurisdiction and announced a final rule that reverts to the WOTUS definition in place before 2015.
Consistent with the draft WOTUS rule, the final WOTUS rule essentially codifies the 1986 WOTUS definition as applied and articulated in guidance following the Supreme Court’s 2006 Rapanos decision. The framework of the final WOTUS rule establishes five categories of WOTUS:
1. Traditional navigable waters, the territorial seas, and interstate waters (“(a)(1) waters”);
2. Impoundments of WOTUS (“(a)(2) impoundments”)
3. Tributaries to (a)(1) waters or (a)(2) impoundments when the tributaries are relatively permanent or have a significant nexus to those waters (“jurisdictional tributaries”);
4. Wetlands that are either:
- adjacent to (a)(1) waters
- adjacent to and with a continuous surface connection to relatively permanent (a)(2) impoundments
- adjacent to tributaries that meet the relatively permanent standard; or
- adjacent to (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard; and
5. Other intrastate lakes and ponds, streams or wetlands that meet either the relatively permanent or significant nexus standards
This WOTUS framework incorporates two standards dating back to the Rapanos decision, the “relatively permanent” standard and the “significant nexus” standard. As articulated in the final WOTUS rule, relatively permanent waters are “waters that are relatively permanent, standing or continuously flowing,” while waters with a significant nexus are described as waters that “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity” of (a)(1) waters. The proposed rule also provides for eight categorical exclusions such as dry land ditches that do not carry a relatively permanent flow of water, and swales and erosional features. According to EPA, the final WOTUS rule considered over 114,000 public comments on the proposed rule that was published on December 7, 2021. And contrary to previous statements, EPA has recently indicated to the press that they do not expect to issue a second rule that potentially would expand upon the pre-2015 WOTUS definition.
Nevertheless, the final WOTUS rule will likely not be the last word in 2023 on the scope of CWA jurisdiction, as the Supreme Court is scheduled this term to issue its decision in Sackett v. EPA. In that case, the Sacketts appealed a Ninth Circuit decision affirming EPA’s decision that a wetland on their property qualified as a WOTUS. As part of their appeal, the Sacketts directly challenged the use of the “significant nexus” test from Rapanos that was used as part of the final WOTUS rule framework and instead proposed a third test that asks whether the wetland is “inseparably bound up” with a WOTUS. Notably, the final WOTUS rule released in December devotes a significant chunk of text to argue why a WOTUS definition that solely relies on the “relatively permanent” standard and fails to incorporate a “significant nexus” test is inconsistent with the objectives of CWA, and the Acting Solicitor general advised the Court in writing of the availability of the new rule and analysis. Of course, the Sackett’s responded with their own letter, arguing that the proposed rule and preamble ignores relevant legislative history.
Once the Supreme Court rules in Sackett, EPA and the Corps will likely evaluate the decision and decide whether the final WOTUS rule can stand or needs to be revised in the near term. Regardless of the Supreme Court’s decision and the agencies’ reaction, if the past is any indication, there will likely be multiple legal challenges filed in response, which could continue to raise questions about the scope of WOTUS under the CWA.