On December 6, 2021, the Environmental Protection Agency (“EPA”) published in the Federal Register its highly-anticipated proposed rule to redefine the term “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). The term is critical to the CWA because it determines which water bodies receive CWA protection. Since 2015, the definition of WOTUS has been subject to various changes, both as the result of new regulations adopted by EPA, and court decisions concerning those regulations. The newly proposed rule aims to return the definition of WOTUS to its pre-2015 regulatory regime, with the hope that the final rule will fulfill CWA obligations, and appropriately reflect the scope of the CWA, so that the rule withstands legal challenges.

Background

The CWA was passed by Congress in 1972. The goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of that Nation’s waters.” 33 U.S.C. § 1251(a). To accomplish this goal, the CWA employees different permitting programs that restrict the discharge of pollutants into “navigable waters.” The CWA goes on to define navigable waters as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). However, the CWA does not define the term “waters of the United States.” Instead, EPA is responsible for drafting regulations that clarify what types of waterbodies fall under the definition of WOTUS. It is important that the definition of WOTUS be clear and understandable so that anyone, including agricultural producers, who may be subject to CWA regulation know whether an action requires a permit in order to avoid CWA violations.

In the nearly 50 years since the CWA was passed, EPA has adopted various regulatory definitions of WOTUS. However, since 2015, the definition has been in a seemingly constant state of flux. Prior to 2015, the same definition of WOTUS had been in place since 1986. Under the 1986 regulations, seven basic categories of waterbodies fell under the definition of WOTUS. To learn more about the 1986 regulations, see here. In 2015, EPA adopted the Clean Water Rule (“2015 rule”) which expanded the definition of WOTUS in response to two United States Supreme Court cases. The 2015 rule was controversial. It faced several legal challenges, and by 2019 the 2015 rule was legally effective in only twenty-two states. To address this issue, EPA adopted a new WOTUS definition in 2020. Known as the Navigable Waters Protection Rule (“Navigable Waters Rule”), the 2020 regulations presented a narrow definition of WOTUS that was restricted to six categories of waterbodies. The Navigable Waters Rule was also the target of various lawsuits, and was ultimately vacated by a federal court in 2021. To learn more about the Navigable Waters Rule and subsequent lawsuits, see here and here.

When President Biden took office in January 2021, he issued an Executive Order directing several federal agencies to review a variety of recent regulations, including the Navigable Waters Rule. After review, EPA determined that it would once again revisit the definition of WOTUS and attempt to draft a rule that would advance the objective of the CWA while accurately reflecting the scope of the statute’s jurisdiction. During 2021, EPA conducted multiple listening sessions with stakeholders to receive feedback on previous WOTUS rules and expectations for a future rule. After considering input from stakeholders, reviewing previous WOTUS regulations, and Supreme Court cases, EPA drafted and published a proposed rule in December 2021.

What’s in The Proposed Rule

According to EPA, the newly proposed rule intends “to interpret ‘waters of the United States’ to mean the waters defined by the familiar 1986 regulations” with certain amendments to reflect the statutory limits of WOTUS informed by Supreme Court cases.

Under the proposed rule, WOTUS would be defined to include: traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and “other waters” that meet either the relatively permanent standard or the significant nexus standard. All of these categories of protected waters can be found in the 1986 regulations. The major change made by the proposed rule is to condition the inclusion of some waters on whether they meet either the relatively permanent standard or the significant nexus standard, both of which are derived from a Supreme Court decision.

In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court considered the scope of WOTUS as it applied to certain wetlands. The Court did not reach a majority decision, but instead published a plurality opinion authored by Justice Scalia, a concurring opinion authored by Justice Kennedy, and a dissent. The plurality opinion interpreted WOTUS to include wetlands and tributaries which were “relatively permanent, standing or continuously flowing bodies of water” or that shared a “continuous surface connection with” traditionally navigable waters. That interpretation is the source of the proposed rule’s relatively permanent standard. Similarly, Justice Kennedy’s concurrence provides the basis for the proposed rule’s significant nexus standard. According to the concurrence, a waterbody that is not a traditional navigable water could still be a WOTUS if it possesses a “significant nexus to waters that are or were navigable in fact or that could reasonably be made so.” It goes on to explain that a significant nexus exists if the water body or wetland “significantly affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

Since Rapanos, courts that have considered the question have determined that CWA jurisdiction can be found for at least those waters that satisfy the significant nexus standard, with most concluding that CWA jurisdiction can be established under either the significant nexus standard or the relatively permanent standard. While EPA did not revise the WOTUS regulations after Rapanos, it did issue guidance documents concluding that a water would fall under CWA jurisdiction if it met either standard. The proposed rule would officially codify both standards.

According to the proposed rule, the definition of WOTUS would include traditional navigable waters, the territorial seas, and their adjacent wetlands. This language comes directly from the 1986 regulations, and has generally been included in every definition of WOTUS. Like the 1986 regulations, the proposed rule defines traditional navigable waters as “all waters that are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” The inclusion of interstate waters in the WOTUS definition is also a return to the 1986 regulations. Interstate waters will be defined as “all rivers, lakes, and other waters that flow across, or form a part of, State boundaries” regardless of whether those waters are also traditionally navigable.

Impoundments of protected waters, such as dams and reservoirs, is another carry over from the 1986 regulations with one change. Waters that are determined to fall under CWA jurisdiction because they fit into the “other waters” category will be excluded from the definition of impoundments. In other words, only impoundments of waters that do not fall into the “other waters” category will be granted CWA protection under the impoundments category. Impoundments of “other waters” may still receive CWA protection, but only if they meet other requirements. EPA is specifically seeking comments on whether impoundments of “other waters” should be assessed under the “other waters” category.

The proposed rule also retains the tributary category from the 1986 regulations, updated to reflect relevant Supreme Court decisions. Under the 1986 rule, “tributaries” was defined to include “tributaries of traditional navigable waters, interstate waters, ‘other waters,’ or impoundments.” In contrast, the proposed rule defines tributaries as “tributaries of traditional navigable waters, interstate waters, impoundments, or the territorial seas if the tributary meets either the relatively permanent standard or the significant nexus standard.” The updated definition of tributaries removes the “other waters” language so that a tributary of a waterbody that falls under the “other waters” category does not automatically receive CWA protection as a tributary. Instead, such a tributary would be evaluated independently under the “other waters” category. The proposed rule also adds territorial seas to the definition of tributary so that any water which is a tributary to a territorial sea will fall under CWA jurisdiction. The final change the proposed rule makes to the tributary category is the requirement that the tributary meet either the relatively permanent standard or the significant nexus standard in order to determine CWA jurisdiction.

Similarly, the adjacent wetlands category will also retain language from the 1986 regulations, with some updates. The definition of “adjacent” will remain unchanged from the 1986 regulations, which defined “adjacent” as “bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barrier, natural river berms, beach dunes and the like are adjacent wetlands.” Wetlands that are adjacent to traditional navigable waters and interstate waters received protection under the 1986 regulations without further analysis. The proposed rule will do the same. However, wetlands that are adjacent to impoundments or tributaries will need to be evaluated to determine if they meet either the relatively permanent standard or the significant nexus standard before receiving CWA protection.

Finally, the “other waters” category is another carry over from the 1986 regulations with an update to reflect relevant Supreme Court precedent. Under the 1986 regulations, “other waters” that did not fit into any other category of WOTUS could still fall under CWA jurisdiction if the use, degradation, or destruction of the water could affect interstate or foreign commerce. The proposed rule would remove the requirements relating to interstate or foreign commerce and instead conclude that “other waters” would fall under CWA jurisdiction only if they meet either the relatively permanent standard or the significant nexus standard.

Going Forward

EPA published the proposed WOTUS rule in the Federal Register on December 6, 2021. At that time, the comment period opened, and it is expected to run until February 7, 2022. While EPA may extend the comment period if it finds additional time necessary, parties looking to submit a comment should try to do so before the current cut-off date.

After the comment period on the proposed rule closes, EPA will review all comments and develop a final rule.

To read the proposed rule, click here.

For a timeline of the definition of WOTUS from 1972 to present, click here.

To read the text of the CWA, click here.

For more National Agricultural Law Center resources on the CWA, click here.