On November 18, 2021, the EPA and the Department of the Army released their proposed revised definition of “United States Waters” (WOTUS) – which phrase governs the geographic scope of the Clean Water Act (CWA) . Public hearings will take place in January.
The proposal lands in the quicksand of litigation that has swirled around the CWA for decades. At the end of August, an Arizona District Court judge overturned the Trump rule that was being implemented across the country. Federal agencies interpreted this vacatur to overturn the rule nationwide and the jurisdiction of the CWA changed overnight – going back to the 1986 definition of WOTUS as implemented by agencies on the basis of guidelines issued following the 2006 Supreme Court decision. Rapanos decision. The sudden return had real consequences on the ground for a range of stakeholders who made personal and business decisions based on the Trump version of WOTUS which had codified a narrower interpretation of WOTUS.
Now the agencies say they are essentially proposing to codify the current approach – sticking to a framework familiar to the private sector and to EPA and US Army Corps of Engineers field staff, the latter implementing the CWA Section 404 permit program on a daily basis. Because pending litigation could bring the rule back to the Trump era (which advanced a narrower interpretation in important respects), they propose to codify the post-Rapanos approach. The agencies characterize this proposal as advancing the agency’s goals of “rapidly and sustainably protecting the waters of the country.” Nonetheless, the EPA has said it intends to attempt regulatory novelty again in the future – continuing a second phase of rulemaking that builds on that foundation.
What WOTUS will include: Under the proposed rule, WOTUS would include: traditional navigable waters (TNW), interstate waters, territorial seas and their adjacent wetlands; WOTUS headlands; tributaries of the TNWs, interstate waters and territorial seas, and impoundments of those tributaries that are either “relatively permanent” or have a “significant connection” to the TNWs; wetlands adjacent to impoundments and tributaries that are “relatively permanent” or have a “significant connection”; and “other” waters that are “relatively permanent” or have a “significant connection”.
The category “relatively permanent” means “waters which are relatively permanent, stagnant or continuously flowing and waters having a continuous surface connection with such waters”. The qualifier “significant connection” means “waters which, alone or in combination with waters similarly situated in the region, significantly affect the chemical, physical or biological integrity of traditional navigable waters, interstate waters or waters. territorial seas ”.
However, there are differences with the current regime. Note a significant change from the 1986 definition: the “other waters” category, a category based on the 1986 definition, would now be linked to “relatively permanent” and “significant link” investigations rather than the traditional requirement. according to which, in order to be jurisdictional, these waters must have a link with interstate or foreign trade.
What WOTUS will not include: Also in line with past and current practice, the proposed rule would exclude previously converted cropland and wastewater treatment systems from the jurisdiction. However, in accordance with a long-standing practice, the water upstream of a wastewater treatment system would remain under jurisdiction.
With respect to ditches, agencies would continue to consider certain types of ditches to fall outside the jurisdiction – ditches that are entirely dug into and drain only uplands and do not carry a relatively permanent flow of water.
Further, the agencies recognize the limits of their authority under the CWA and “agree” that the limit “must relate to“ significant effects ”or“ significant connections ”” with TNWs, interstate waters and territorial seas. In particular, the agencies recognize the limits of potential regulation of non-navigable, isolated and intrastate waters – many have argued that these limits were pushed past the breaking point by the WOTUS rule of 2015. Given that agencies have planned additional regulatory changes, the nature of these “agreed” limits remains to be determined.
Implementation questions:
The proposal invites comments on a variety of implementation issues, including:
- Should the agencies keep the current examples of “other waters” that may be jurisdictional (eg, mud flats, swamps, natural ponds) or remove the list so that jurisdiction is based on the qualifiers “relatively permanent” and “link important ”without further elaboration?
- Should agencies interpret “similarly located” consistently with the current approach or modify it to more broadly cover “waters that perform common or similar functions for downstream waters so that it is reasonable to consider their effects together ”.
- What approach should agencies take to deal with an analysis of important “other waters” linkages? One approach would require an additional approval process prior to asserting jurisdiction, as the exercise of jurisdiction over “other waters” could approach the limits of CWA authority.
Final observations:
This proposal is not the rule of the Obama era in 2015. Among other differences, this rule established categories of waters that presumably had a “significant connection” to TNWs, such as waters below 4000 feet of the ordinary high water mark, and waters which were presumed to be “like” for the purposes of the jurisdiction. The 2015 rule included waters such as prairie potholes and western spring pools, waters that critics say are generally isolated from the TNWs. On the other hand, this new proposal favors more limited categories of presumed jurisdictional waters and the need for factual analyzes of the “material connection” in other situations.
On the one hand, the proposed rule will find no support among some factions – it will be criticized for not going far enough by some and others will say it goes too far in sweeping the waters categorically excluded under the Trump rule, like some ephemeral ones. waters. On the other hand, he enjoys support in Supreme Court case law and substantial experience in the field – a potential boon to CWA goals and predictability.
