The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced on Aug. 4, 2021, the start of a long anticipated rulemaking process to revise the regulatory definition of “waters of the U.S.” (WOTUS) under the federal Clean Water Act (CWA).1 The WOTUS Rule sets forth the geographic reach of the agencies’ authority to regulate streams, wetlands and other water bodies pursuant to the CWA. The proposal seeks to replace one of the most controversial of the Trump Administration’s environmental regulations, which is now viewed by the agencies as significantly reducing clean water protections. Yet the rule that the Biden Administration seeks to replace was hailed by the regulated community as a welcome check on agency overreach that also provided clarity that reduced the time it takes the agencies to make a determination of jurisdiction. Although there is no set timeline, it would be expected that the process will take at least two to three years to complete given the public notice and comment process. Litigation following the rule’s promulgation should also be anticipated. Litigation upon the rescission and replacement of the existing rule is also deemed likely.
The Federal Register notice states that the agencies will follow a two-step rulemaking process.2 First, the two agencies will propose a “foundational” rule to rescind the Trump Administration’s 2020 Navigable Waters Protection Rule (NWPR)3 and temporarily replace it with the regulatory definition in use prior to the Obama Administration’s 2015 WOTUS rule. In other words, the 1986 definitions of WOTUS would again control agency decision-making. Second, the agencies will undertake a rulemaking process to “build upon” the foundational rule and to propose a new definition. This process is similar to the approach that the Trump Administration took when rescinding and prioritizing the replacement of the 2015 Obama Rule.
The 2020 NWPR Rule interprets the term ”waters of the United States” to encompass four basic classifications of jurisdictional waters in 33 C.F.R. § 328.3(a)(1)-(4):
(1) the territorial seas and traditional navigable waters
(2) perennial and intermittent tributaries that contribute surface water flow to such waters
(3) certain lakes, ponds and impoundments of jurisdictional waters
(4) wetlands adjacent to other jurisdictional waters.4
The NWPR also includes a list of “non-jurisdictional” waters that are specifically excluded from the definition of “waters of the United States.”5 The NWPR makes clear that all waters not specifically identified as “jurisdictional” in subsection (a), discussed above, are not jurisdictional. The list of categorically excluded waters includes ephemeral features that flow only in direct response to precipitation, including ephemeral streams, swales, ditches that are not tributaries, or diffuse stormwater runoff and stormwater control features constructed or excavated in upland or in non-jurisdictional waters to convey, treat, infiltrate or store stormwater runoff.6
The Trump Administration’s NWPR was being actively litigated when Biden won the 2020 presidential election. Rather than defend the rule, the U.S. Department of Justice requested a voluntary remand in order to propose a replacement. In initially announcing the intent to revise the rule on June 9, 2021, EPA Administrator Michael Regan stated that the agencies determined that the NWPR definition put in place by the Trump Administration “is leading to significant environmental degradation.” According to the Corps, the NWPR has led to “a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection,” with the most significant changes in Southwestern states. In particular, the categorical exclusion of “ephemeral” streams from the regulatory definition of a WOTUS was a significant change. Ephemeral streams are dry most of the year and have water only due to precipitation. EPA stated that a new rule will establish “a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”7
The August notice makes clear that the agencies will focus on several key aspects of the WOTUS definition. First, EPA and the Corps stated that they will focus on the science concerning the connectivity of streams and the scope of jurisdictional tributaries. Noting that ephemeral streams were categorically excluded from jurisdiction in the NWPR, the agencies seek feedback on whether consideration of several factors such as indicators of channelization, physical indicators such as indicators of ordinary high water mark, flow regime, flow duration, watershed size, landscape position, stream network density or distance from a traditional navigable water would mean that more tributaries should be regulated. These factors may also be used to, again, regulate ditches built in upland areas (which were categorically excluded under the NWPR). The agencies have made clear their intent to reconsider the regulation of streams and other waterbodies that lack regular flow.
The notice also announces the agencies’ intent to reconsider the definition of “adjacent” wetlands.8 Noting that each regulatory definition of ”waters of the United States” has taken a different approach in determining adjacency for purposes of jurisdiction under the CWA and to the jurisdiction of non-adjacent waters, the notice states that the 2015 Obama definition would have led to many more wetlands being regulated as “adjacent” than under the NWPR. The notice also states that the agencies will identify “characteristics that could allow for clarity, implementability, and/or regionalization in defining adjacency and identifying jurisdictional waters, including whether there are appropriate distances or other factors to limit adjacency, whether there are certain situations where case-specific significant nexus determinations would more appropriately determine jurisdiction, and whether there are certain types of waters with particular features or characteristics that could provide clear and implementable distinctions between jurisdictional and non-jurisdictional waters.”9 This would expand beyond the current definition, which focuses on the necessity of a physical or hydrological connection. 10
Finally, the notice states the agencies’ intent to consider certain issues that are the foundation of the Biden Administration’s regulatory regime, such as climate implications, environmental justice, and state and tribal interests. The notice states that the agencies will attempt to account for the effects of a changing climate in identifying jurisdictional waters and possibly focus on certain waters as important for protection.11
The Aug. 5 notice also solicits public feedback on the issues discussed above and announced a series of five virtual public hearings that will take place in August, starting on Aug. 18. In addition, the agencies have announced their intention to host a series of 10 field hearings to solicit feedback on regional differences regarding the impact of potential changes to the existing WOTUS regulatory definition.
It is clear that the Biden Administration seeks to make significant changes to the WOTUS rule under its belief that the current version has resulted in significant losses of streams and wetlands. The NWPR, however, has wide support among the regulated community, which notes that it allows the states to assume their primacy in water protection. There is no magic wand, however, that would allow the agencies to immediately put in place a rule of their liking. The two-step process is likely to attract substantial public input and potential litigation upon the first step, and litigation inevitably upon the second.
1 Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.
2 Notice of Public Meetings Regarding ”Waters of the United States”; Establishment of a Public Docket; Request for Recommendations. 86 Fed. Reg. 41911 (Aug. 4, 2021)
3 The Navigable Waters Protection Rule: Definition of ”Waters of the United States” 85 Fed. Reg. 22250 (April 21, 2020).
4 33 C.F.R. § 328.3(a)(1)-(4).
5 Id. at § 328.3(b)(1)-(12).
6 Id. at § 328.3(b)(3),(4)(5) and (10).
7 EPA, Army Announce Intent to Revise Definition of WOTUS, EPA press release (June 9, 2021).
8 In 1975, the Corps issued regulations defining “waters of the United States” to include not only actually navigable waters but also tributaries of such waters, interstate waters and their tributaries, non-navigable intrastate waters whose use or misuse could affect interstate commerce, as well as freshwater wetlands “adjacent” to other jurisdictional waters. 40 Fed. Reg. 31320 33 CFR § 323.2(c) (1978). The term “wetlands” is separately defined as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(c)(4) (1982). Hence, once it has been determined that a wetland is present (due to the three parameters of soil, vegetation and hydrology), then the next step is to determine if it is jurisdictional by being “adjacent” to another regulated water.
9 86 Fed. Reg. at 41914.
10 The current (i.e., NWPR) definition provides that “adjacent wetlands” are one of the four recognized jurisdictional waters. 33 C.F.R. § 328.3(a)(4). An “adjacent” wetland must abut, meaning to touch at least at one point or side of, a jurisdictional water, be inundated by such a water, be physically separated from a jurisdictional water only by a natural berm, bank, dune or similar natural feature, or be physically separated only by an artificial dike, barrier or similar artificial structure so long as that structure allows for a direct hydrologic surface connection between the waters. 33 C.F.R. §328.3(c)(1).
11 86 Fed. Reg. at 41913.
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