The Environmental Protection Agency’s and Army Corps of Engineers’ “Revised Definition of ‘Waters of the United States’”(WOTUS) rule will become final on March 20. This latest iteration codifies the agencies’ pre-2015 approach to defining WOTUS and attempts to establish a bridge between the interpretations offered by the prior two administrations. In particular, the rule’s preamble specifically states that in “developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining ‘waters of the United States.’”
Under the new rule, WOTUS includes traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands and other waters that satisfy either the “relatively permanent” or “significant nexus” tests. Notably, both of these tests were previously set forth by the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006).
To satisfy the “relatively permanent” test, a waterbody must be relatively permanent, standing, or continuously flowing with a continuous surface connection to traditional navigable waters, territorial seas, or interstate waters. Waters with a “significant nexus” include waters that significantly affect the chemical, physical, or biological integrity of traditional navigable waters, territorial seas, or interstate waters. However, the new rule excludes prior converted croplands, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, water-filled depressions, and swales and erosional features.
Proponents of the new rule contend it will strengthen protections for drinking water sources and support agriculture, local economies, and downstream communities. On the other hand, opponents argue that the new rule will allow the government to regulate virtually any wetland or stream. Adding to this debate, the U.S. Supreme Court is considering the “significant nexus” test in Sackett v. EPA, which has already been fully argued. Therefore, if the “significant nexus” test is struck down, as anticipated, the scope of the federal government’s authority over wetlands and streams may once again hang in the balance.
Perhaps in anticipation of this and other likely legal challenges to the rule, the EPA, in its regulatory agenda, released on January 4, further proposed refinements to the rule as early as November 2023 “in light of additional stakeholder engagement and implementation considerations, scientific developments, litigation and environmental justice values. Unfortunately, this means that we are unlikely to see a WOTUS resolution in the near future.