Same Old WOTUS

EPA and the Corps of Engineers have finalized their latest iteration of the definition of ‘waters of the United States.’ It is seemingly straightforward, consisting only of a list of jurisdictional waters, exclusions, and internal definitions. Although the agencies claim that the new definition “provides clear rules of the road” regarding the scope of jurisdiction, the agencies incorporate prior expansive jurisdictional principles into the rule.

The history of the regulatory definition of WOTUS is one of ever-increasing regulation of the nation’s waters. The original definition was relatively narrow, generally including traditional navigable waters (TNW). That definition was struck down by a federal district court, who held that the Congress intended to regulate more than TNW in enacting the Clean Water Act. Since then, and even though the statutory definition in the Clean Water Act has not changed, the agencies have embarked on a decades-long effort to increase the scope of jurisdiction.

The Supreme Court’s decision in the 2006 Rapanos case only served to fuel the regulatory expansion of jurisdiction. Justice Scalia enunciated a narrow view of the scope of jurisdiction, generally limiting jurisdiction to TNWs, relatively permanent tributaries, and truly adjacent wetlands.  Justice Kennedy, in his concurring opinion, generally included additional waters and wetlands that had a “significant nexus” to TNWs. After Rapanos, the agencies issued a guidance document (the Rapanos Guidance) which incorporated both views. Not surprisingly, the Rapanos Guidance includes a rather expansive view of what constitutes a ‘significant nexus.’

The Obama Administration promulgated a WOTUS definition in 2015, which was generally a codification of the Rapanos Guidance. Court decisions regarding the 2015 rule led to a patchwork of regulation in which the 2015 rule was applicable in some states and not applicable in others. The Trump Administration then repealed the 2015 rule and enacted its own WOTUS definition in 2020 based on the narrower Scalia formulation in Rapanos.

The Biden Administration has now enacted its own definition, which they claim is the “familiar, pre-2015 definition of [WOTUS] updated to reflect consideration of Supreme Court decisions, the science, and the agencies’ technical expertise.” In other words, the 2022 rule incorporates both views expressed in Rapanos and the expansive views discussed in the Rapanos Guidance.

The regulatory text of the new definition includes five categories of jurisdictional waters: TNWs, territorial seas, and interstate waters; impoundments; tributaries, adjacent wetlands, and other waters. It then sets out specific exclusions from four of these categories: impoundments; tributaries, adjacent wetlands, and other waters. None of the stated exclusions apply to TNWs, territorial seas, and interstate waters. Finally, the new definition provides specific definitions of terms used in the overall definition, such as ‘wetlands,’ ‘adjacent,’ and ‘significantly affect.’

The category including TNWs, territorial seas, and interstate waters is called Par. (a)(1) waters based on their designation in the rule. EPA grouped these three types of waters together but did not otherwise make any substantive changes or intend to alter any “longstanding interpretation and implementation of these provisions.”

Nevertheless, the agencies’ interpretation of TNW is somewhat broad. It includes any waters that are “currently used, were used in the past, or may be susceptible for use in interstate or foreign commerce.” Consistent with the 2015 rule, EPA continues to assert that waters used for “commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments)” will be TNWs. Thus, the potential reach of the term is broad.

Tributaries include rivers, streams, lakes, ponds, and impoundments, regardless of their flow regime, that flow directly or indirectly to a Par. (a)(1) water or an impoundment. To be jurisdictional, the tributary must be part of a system that eventually flows to one of those waters and either meets the relatively permanent standard or the significant nexus standard.

The relatively permanent standard encompasses tributaries that have flowing or standing water year-round or continuously during certain times of the year. Relatively permanent waters do not include tributaries with flowing or standing water for only a short duration in direct response to precipitation.

Under the significant nexus standard, the agencies determine whether the tributaries, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of a Par. (a)(1) water. EPA also includes a definition of ‘significantly affects,’ which means a material influence on the chemical, physical, or biological integrity of Par. (a)(1) waters. It is important to note that the agencies have included a significance and materiality standard. As a result, the affect or influence a tributary may have on a Par. (a)(1) water must be somewhat more than negligible.

In any event, the broadness of the definitions of TNWs and tributaries means that large expanses of waters will be deemed jurisdictional. For example, a water on which a guided fishing trip is conducted will be, under this rule, deemed a TNW and, as a result, any waters flowing into it (howsoever small) could be deemed a tributary if it meets one of the two standards.

Wetlands adjacent to a Par. (a)(1) water are also jurisdictional. Adjacent means bordering, contiguous, or neighboring, including wetlands separated by “man-made dikes or barriers, natural river berms, beach dunes, and the like.”

Further, wetlands adjacent to tributaries may also be jurisdictional if the tributary is a relatively permanent, standing, or continuously flowing body of water with a continuous surface connection.

Additionally, wetlands adjacent to jurisdictional tributaries are also jurisdictional if the wetlands alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of a Par. (a)(1) water.

Also, the agencies include ‘other waters,’ which are intrastate lakes and ponds, streams, or wetlands not otherwise included in any of the above categories. These ‘other waters’ must be either 1) a relatively permanent, standing, or continuously flowing body of water with a continuous surface connection to a Par. (a)(1) water or a tributary meeting the relatively permanent standard; or 2) the other water, either alone or in combination with similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a Par. (a)(1) water.

The agencies also included several exclusions. Prior converted cropland is excluded. However, the agencies codified the so-called “change in use” policy, stating that “the exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities.” Thus, even if the plot of land has been in agriculture use since before the passage of the Clean Water Act, EPA will assess jurisdiction if the land is put to any other use.

The agencies also exclude “ditches (including roadside ditches) that do not carry a relatively permanent flow of water. However, these ditches must have been “excavated wholly in and draining only dry land,” which somewhat limits the scope of the exclusion. Swales and erosional features, such as gullies or small washes, characterized by low volume, infrequent, or short duration flow are also excluded, without any reference to dry land.

It is important to note that the ‘significant nexus’ portion of the rule may be in jeopardy. The Supreme Court heard oral argument in Sackett v EPA in October 2022 on the question of “the proper test for determining whether wetlands are "waters of the United States" under the Clean Water Act.” Many observers of the oral argument indicated that there did not seem to be five votes on the Supreme Court to uphold the ‘significant nexus’ test. However, it is unclear exactly how the court will ultimately rule.