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January 24, 2023  |  Written by Michael W. Daugherty

Biden Administration Redefines “Waters of the United States”

On January 18, 2023, the United States Environmental Protection Agency (EPA) and the Department of the Army (collectively, the “Agencies”) finalized a rule (2023 Rule) redefining how the Agencies interpret “waters of the United States” (WOTUS) pursuant to the Clean Water Act (CWA).  The 2023 Rule attempts to return federal jurisdiction to the scope reflected in pre-2015 regulations and relies on the best available science, agency experience, and Supreme Court precedent.  The 2023 Rule is scheduled to go into effect on March 20, 2023, but will likely face legal challenge.

The 2023 Rule is scheduled to go into effect on March 20, 2023, but will likely face legal challenge.

WOTUS Background

Congress enacted the CWA in 1972 to create a federal legal basis to address water pollution and water quality regulation.  In 1985, the U.S. Supreme Court upheld Congress’s delegation of regulatory authority under the CWA to the Agencies, and again considered the CWA’s scope in 2001 and 2006.  The Agencies’ regulatory jurisdiction under the CWA is limited to “navigable waters,” defined in the CWA as “the waters of the United States, including the territorial seas.”  33 U.S.C. 1367(7).  Over the years, the Agencies have adopted regulatory definitions that further refine the statutory “waters of the United States” definition; these regulations have been the target of substantial litigation, aimed at limiting federal authority over water quality.  Since 2015, the regulatory definition of “waters of the United States” has changed four times—in 2015, 2019, 2020, and now again in 2023.

2023 Rule

Under the 2023 Rule, “waters of the United States” include: (1) traditional navigable waters, the territorial seas, and interstate waters; (2) impoundments of qualifying waters; (3) tributaries to qualifying waters; (4) wetlands adjacent to qualifying waters; and (5) certain intrastate lakes and ponds, streams, and wetlands.

The 2023 Rule discusses two standards used to determine whether certain water qualifies for federal regulation: the “relatively permanent standard” and the “significant nexus standard.”  The first identifies relatively permanent, standing, or continuously flowing waters connected to water subject to the CWA, and the second identifies waters that significantly affect the chemical, physical, or biological integrity of water subject to the CWA.  The 2023 Rule codifies certain exclusions, as well, including longstanding exclusions for prior converted cropland and waste treatment systems, and for features that were considered non-jurisdictional under the pre-2015 regulatory regime.  The 2020 interpretation, by contrast, largely eliminated consideration of the “significant nexus standard” in CWA administration.

“Waters of the United States” Litigation

Federal jurisdiction to regulate under the CWA is based on the regulatory definition of “waters of the United States” and has been the subject of numerous legal challenges.  Initially, the judicial review of the federal regulatory definitions expanded the Agencies’ discretion to determine jurisdictional waters; more recently, however, courts seem inclined to constrict the scope of discretion to determine which waters are jurisdictional.

The first challenge was in 1985, when the Court unanimously reversed the Sixth Circuit Court of Appeals and deferred to the EPA’s determination that wetlands adjacent to protected waters were subject to CWA regulation.  United States v. Riverside Bayview Homes, 474 U.S. 121 (1985).

By contrast, a 5-4 Court held in 2001 that non-navigable waters used by migratory bird populations which also relied on navigable waters during their migration was not a sufficient basis for the Agencies to exercise jurisdiction over non-navigable waters.  Solid Waste Agency of Nern. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001).

The scope of agency discretion only got muddier in 2006, when the Court ruled that the CWA does not regulate all wetlands but disagreed on the proper test to apply when determining whether a wetland is subject to the CWA.  Rapanos v. United States, 547 U.S. 715 (2006).  A four-Justice plurality interpreted the “waters of the United States” to be limited to relatively permanent, standing, or continuously flowing bodies of water connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such water bodies.  The plurality noted that this interpretation did not necessarily exclude seasonal rivers and water bodies that might dry up in a drought, only adding to the uncertainty.  The dissenting opinion in Rapanos supported a broader definition and deference to the EPA’s determination.

Currently pending before the Court is Sackett v. EPA, which asks the Court to again consider whether wetlands are subject to regulation and to establish the proper test for determining whether wetlands constitute “waters of the United States” under the CWA.  Sackett v. Env’t Prot, Agency, 8 F.4th 1075 (9th Cir. 2021), cert. granted Jan. 24, 2022.  The plaintiffs in Sackett urge the Court to adopt the test proposed by the four-Justice plurality in Rapanos, discussed above; whereas the EPA supports the significant nexus test that Justice Kennedy described in his dissenting opinion in Rapanos and that the Agencies have included in the 2023 Rule.  Oral arguments in Sackett were held on October 3, 2022, and the attorney representing the EPA specifically referenced the (at the time forthcoming) 2023 Rule.  The Court has yet to issue an opinion in Sackett, which may determine the future of the significant nexus test.

What to Expect

The 2023 Rule establishes how the Agencies will now determine which “waters of the United States” are jurisdictional for purposes of the CWA.  If the 2023 Rule remains in place as promulgated, entities subject to CWA regulation should expect a jurisdictional approach similar to that taken by the Agencies prior to 2015.  The Supreme Court’s decision in Sackett may ultimately determine the fate of the 2023 Rule.  Even if the Court upholds the 2023 Rule and significant nexus test in Sackett, like other recent WOTUS interpretations, the 2023 Rule is likely to face additional legal challenge.

If you have any questions about the Biden Administration’s revised WOTUS interpretation and how it may affect water quality regulation in your area, please contact:

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