For well more than a decade, every year has brought a new wave of WOTUS uncertainty. At all but the stroke of midnight to close out 2022, the EPA announced the final revised WOTUS rule which is set to take effect this spring, 60 days after publication in the Federal Register. If headlines about WOTUS over the past decade have confused you, fear not. You’re not alone. The two steps forward – one step back progression of the hunt for WOTUS clarity follows a switchback trail of previous and current administrations. Despite this brand-new rule, the uncertainly might not be over just yet.
Since the inception of the modern-day Clean Water Act (“CWA”), enforcement agencies and citizens alike have been seeking to define “water of the United States” in an effort to determine where federal jurisdiction of a body of water begins and ends under the CWA. Sparing the dirty details, there have been four WOTUS eras worthy of mention here.
First, commonly referred to as the “Pre-2015 Rule,” the WOTUS rule in place since the 1980s was constructed through regulation and the implementation of key agency memoranda shaped by seminal judicial opinions.[1] The second era of mention began in 2015, when the EPA and Army Corps of Engineers (the “Corps”) issued a new rule, also known as the “Clean Water Rule” which was broader in application and was simultaneously praised as a long-overdue revision of the WOTUS rule, and also criticized as a gross overreach of authority. Due in part to legal challenges, the EPA and the Corps delayed implementation of the 2015 Clean Water Rule until 2020. Meanwhile, in 2019, the Trump administration repealed the 2015 Clean Water Rule and in 2020, proposed yet another new WOTUS rule, the “Navigable Waters Protection Rule,” or “NWPR,” the third mentionable WOTUS era.
The NWPR reversed course from the 2015 Rule, narrowing the scope of WOTUS and federal jurisdiction under the CWA by setting forth four categories of waters falling under CWA jurisdiction which included territorial seas, traditionally navigable waters and interstate waters; tributaries and lakes, ponds, impoundments directly or indirectly contributing surface water to traditionally navigable waters; and wetlands adjacent to these. Once again, litigation quickly took center stage. The NWPR was short-lived as President Biden’s administration sought to provide a workable, more stable definition of WOTUS and nix the never-ending uncertainty that has plagued the CWA since its inception.
The fourth and current era officially began on December 30, 2022, when the EPA and the Corps finalized the latest WOTUS rule. Under the new final rule, using the Pre-2015 Rule as a foundation, tributaries and impoundments as well as wetlands adjacent to traditionally navigable water that are either “relatively permanent” or have a “significant nexus” to traditionally navigable waters will fall under the CWA’s jurisdiction. The new rule sets forth that its “relatively permanent standard” refers to “relatively permanent, standing or continuously flowing waters” connected to traditionally navigable waters or waters with a “continuous surface connection to such relatively permanent waters.” The rule also defines a “significant nexus” as where waters “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.” Finally, the new rule states that “adjacent wetlands” are those which have a “continuous surface connection to a relatively permanent, standing or continuously flowing water” connected to traditionally navigable waters “or must either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity” of traditionally navigable waters, territorial seas or interstate waters.[2]WOTUS clarity, in large part, hinges on these defined terms and the ability of these terms to be readily identified and applied.
In its release of the new rule, the EPA also published a “Fact Sheet for the Agricultural Community” which sets forth the agricultural exemptions from CWA jurisdiction and specific exclusions in the final rule. Among the exemptions are “normal farming, silviculture, and ranching activities” with examples listed; construction of farm or stock ponds or irrigation ditches and maintenance of drainage ditches; and construction or maintenance of farm roads in accordance with best management practices. Prior converted cropland also remains excluded from the final rule so long as it is available for agricultural commodity production, such as crop production, haying, grazing, agroforestry, or idling land for conservation uses.[3]
Currently, the nation awaits the Supreme Court’s decision in Sackett v. EPA, wherein the Supreme Court is asked to determine the proper test for determining which wetlands constitute WOTUS. The Supreme Court is expected to announce its decision early this spring. The anticipated ruling has the potential to affect the latest WOTUS final rule and send the EPA and Corps back to the writing room or alternatively, to affirm the appropriateness of the new rule as written. For today, a new WOTUS rule reigns. Time will tell whether the hunt for WOTUS clarity is over or whether litigation, both new and old, will keep WOTUS in the trenches
[1] See SWANCC v. U.S. Army Corps of Engineers, 531 US 159 (2001), and Rapanos v. U.S., 547 US 715 (2006).
[2] EPA, Pre-Publication Final Rule Notice: Revised Definition of ‘Waters of the United States.’” 6560-50-P (December 2022) pp. 9-10.
[3] EPA, “Final Rule: Revised Definition of ‘Waters of the United States’ Fact Sheet for the Agricultural Community December 2022.”
Author: Jennifer Shaver Friedel, J.D.
Director, Land Use-Value Assessment Program
Professor of Practice
Virginia Tech
Friedel, Jennifer. “The Navigability of WOTUS.” Southern Ag Today 3(2.5). January 13, 2023. Permalink
Photo by Max Parada: https://www.pexels.com/photo/stones-on-the-river-13932592/
