EPA and Army Corps Issue New WOTUS Rule Narrowing Scope of Waterways and Wetlands Under Federal Jurisdiction
On August 29, 2023, the Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (the “Corps”) jointly issued the pre-publication version of a new final rule that revises the standards that will be used by the EPA and the Corps to determine what types of waterways and wetlands are subject to federal jurisdiction for permitting and impact purposes. The new rule was issued as a direct result of the recent U.S. Supreme Court’s May 25, 2023 ruling in Sackett v. EPA, which narrowed the scope of what are considered “waters of the United States” (“WOTUS”), and therefore subject to federal regulation under the federal Clean Water Act. Importantly, unlike most federal rules and regulations, this proposed rule will not go through the traditional notice and comment rulemaking process, but rather will be immediately effective upon final publication in the Federal Register.
Under the new rule, in keeping with the Sackett decision, federal waterways and wetlands will be limited to only those that are “relatively permanent, standing or continuously flowing bodies of water,” and that also have a “continuous surface connection to bodies of water that are ‘waters of the United States’ in their own right.” The new rule therefore amends the definition of “adjacent” to now mean “having a continuous surface connection,” which was the test adopted by the Sackett majority. The agencies have therefore entirely eliminated the “significant nexus” test, which had been previously used to find that a wetland was a WOTUS because either alone or in combination with similar situated lands in the region, it significantly affected the chemical, physical, and biological integrity of a WOTUS, i.e., a traditional navigable body of water. The agencies are also removing the definition of “interstate wetlands” as being subject to federal jurisdiction merely because a wetland boundary crossed state lines.
The new rule will not change any of the previously existing exclusions to WOTUS, such as the prior converted cropland exclusion, wastewater treatment ponds or lagoons, artificial lakes and ponds, and other similar pre-existing exclusions from federal jurisdiction.
Despite narrowing the scope of what constitutes a waterway or wetland under the definition of a “water of the United States,” and therefore subject to federal permitting requirements, many states have their own waterways and wetlands regulations and permitting requirements, which define state waterways and wetlands more broadly to encompass streams and wetlands that are located exclusively within a state and have no connection to “navigation” or other traditional concepts that would subject a waterway to federal jurisdiction. Therefore, even if a project or activity may no longer need to obtain a federal permit under the narrowed scope of the new rule, it may nevertheless require a permit to be obtained from a state environmental agency.
Finally, if the past is any indication, once effective the new WOTUS rule will be subject to litigation from all sides, raising the prospect of inconsistent rulings and application of the WOTUS rule across multiple jurisdictions.