USEPA Plans to Clarify Federal Clean Water Act Jurisdiction in 2022
In our 2021 Forecast article regarding the ongoing saga associated with defining the extent of Waters of the United States (WOTUS) subject to federal Clean Water Act jurisdiction, we predicted that 2021 would see steps to undo the Trump administration’s “Navigable Waters Protection Rule”, which had previously narrowed the set of waters considered to be WOTUS. That prediction played out in the second half of 2021, with promises for more activity in 2022.
First, in June, the two federal agencies responsible for implementing any WOTUS rule (the USEPA and the US Army Corps of Engineers) announced that efforts were underway to issue two rulemakings intended to revise the definition of WOTUS. The first rule would put back in place a 1986 definition as used following the Supreme Court’s 2006 Rapanos decision. The second rule would “further refine and build upon that regulatory foundation.” Then, at the end of August, a federal district court in Arizona vacated the Navigable Waters Protection Rule. USEPA and the Corps subsequently announced that based upon the court’s order the agencies would interpret WOTUS to be consistent with the 1986 definition and post-Rapanos guidance.
On November 18, 2021, the agencies announced the proposed first rule, reiterating the intent to use the 1986 definition as implemented following the Rapanos decision. In essence, the agencies have attempted to codify the approach that was set out in guidance and used until the Obama administration promulgated its more expansive 2015 rule. Most significantly, the proposed 2021 WOTUS rule states that wetlands, tributaries (and wetlands adjacent to those tributaries) and “other waters” that are “relatively permanent” or have a “significant nexus” to other WOTUS identified in the rule, qualify as WOTUS. Relatively permanent waters are “waters that are relatively permanent, standing or continuously flowing bodies of water with a continuous connection” to such WOTUS. Waters with a significant nexus are described as waters “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity” of such WOTUS. Unlike the Trump rule, the proposed rule does not include categorical exclusions for groundwater, ditches and ephemeral streams, instead requiring such waters to be evaluated under the relatively permanent and significant nexus standards. The proposed rule was published on December 7, 2021, and the public comment period remains open until February 7, 2022.
As noted previously, the proposed rule is supposed to be the first of two rules intended to define WOTUS. Knowing that a new WOTUS rule will likely be subject to extensive litigation, it remains to be seen how much effort in the near term the Biden administration will put into any proposal that expands upon the current attempt to codify the Rapanos approach.