Waters of the United States Rule Revised in Response to Sackett Decision

The U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) on Aug. 29, 2023, issued a final rulemaking revising the definition of "Waters of the United States" (WOTUS) within Corps¹ and EPA² regulations, pursuant to the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq (WOTUS Rule). The WOTUS Rule amends the Biden Administration's January 2023 "Revised Definition of 'Waters of the United States'" (Biden Rule) and was issued in order to conform the definition of "WOTUS" to the May 25, 2023, opinion of the U.S. Supreme Court in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).

As explained in Holland & Knight's previous alert, "Sackett Decision Provides Clarity, Substantially Restricts Clean Water Act Jurisdiction Scope," May 26, 2023, the Sackett court rejected the Biden Rule's broad expansion of the CWA's geographical regulatory reach under the "significant nexus" test. That rule was issued to replace the Trump Administration's 2020 Navigable Waters Protection Rule (NWPR). (For a history of the Biden Rule, see Holland & Knight's previous alert, "Waters of the U.S. Rule Will Significantly Expand Federal Authority," Jan. 19, 2023.)

The new WOTUS Rule significantly narrows the geographic reach of the CWA, excluding, for example, wetlands that lack a continuous surface connection to traditionally navigable waters. Intermittent and ephemeral streams, located for example in the arid West, would likely not be considered jurisdictional given that they are not "relatively permanent, standing or continuously flowing bodies of water." The WOTUS Rule does not, however, reflect the full scope of the Sackett court's holding – failing to provide clarity over certain key terms such as "relatively permanent." Rather, the preamble to the WOTUS Rule provides that the agencies intend to hold stakeholder meetings and to provide further guidance consistent with the Sackett opinion. Thus, there is still some uncertainty regarding how the agencies will ultimately implement the revised definition.

Background

Prior to the Sackett decision, there had been several Supreme Court decisions and dueling regulatory definitions concerning the proper standard for how to determine whether a wetland or stream that is not navigable in fact is properly considered a WOTUS. When the Supreme Court granted review in the Sackett case, it teed up resolution of a prior Supreme Court opinion, Rapanos v. United States, 547 U.S. 715 (2006).

The Rapanos opinion was a split decision that left some room for debate. Under the "relatively permanent" test set out by Justice Antonin Scalia for the Rapanos plurality, a permanent hydrologic connection to traditionally navigable waters is required to qualify as a WOTUS, thereby excluding channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. In order for an "adjacent" wetland to be considered jurisdictional under the Scalia test, it must have a continuous surface connection with the navigable water, making it difficult to determine where the "water" ends and the "wetland begins." Hence, per the Rapanos plurality, only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams, oceans, rivers and lakes" qualify as WOTUS subject to regulation under the CWA. On the other hand, the test set out by Justice Anthony Kennedy, in a concurrence, does not require such a permanent hydrologic connection. Rather, Kennedy would require a finding that a wetland possesses a "significant nexus" necessary for restoring and maintaining the chemical, physical and biological integrity of navigable waters. Under Kennedy's significant nexus test, wetlands qualify as WOTUS "if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'"

As explained in the preamble to the Biden Rule, for the first decade following the Rapanos decision, the agencies relied on an interpretation of the CWA whereby "jurisdiction exists if a water meets either the relatively permanent standard or the significant nexus standard." 88 Fed. Reg. at 3014. Unlike the Trump Administration's NWPR, which generally adhered to Scalia's "relatively permanent" standard to the exclusion of Kennedy's "significant nexus" standard the Biden Rule set forth both the "relatively permanent" and "significant nexus" standards. For example, under the Biden Rule, CWA jurisdiction extended to intrastate lakes, ponds, streams and wetlands that meet either the "relatively permanent" or "significant nexus" standards.

In Sackett, the majority opinion rejected the Biden Rule and concluded that Scalia's Rapanos plurality opinion "was correct." Per Sackett, the CWA's "use of [the term] 'waters' encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes." With respect to adjacent wetlands, the opinion works through the history of the CWA and analyzes the statutory text to conclude that the CWA "reflects Congress's assumption that certain 'adjacent' wetlands are part of 'waters of the United States.'" (Slip Op. at 20). The Court agreed with the Rapanos plurality's holding that to assert jurisdiction over an adjacent wetland under the CWA, a party must establish "first, that the adjacent [body of water constitutes] … 'water[s] of the United States' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins.'" (Slip Op. at __(citing Rapanos)). The Court stated plainly that "the CWA extends to only wetlands that are as a practical matter indistinguishable from waters of the United States." Id.

The WOTUS Rule

The WOTUS Rule purports to conform its definition of WOTUS to Sackett by revising the Biden Rule to eliminate references to the "significant nexus" standard, clarifying application of Scalia's "relatively permanent" standard and clarifying that CWA jurisdiction extends only to adjacent wetlands and intrastate lakes and ponds that have a continuous surface connection to an otherwise jurisdictional water.

The agencies chose not to subject the rule to notice and comment under the theory that these "conforming amendments do not involve the exercise of the agencies' discretion" and "[a] notice and comment process would neither provide new information to the public nor inform any agency decision-making regarding the aspects of the regulations defining 'waters of the United States' that are invalid as inconsistent with the Clean Water Act under Sackett." This decision to forgo notice and comment is certain to be challenged.

Specifically, the WOTUS Rule defines "waters of the United States" to include the following:

1. traditional navigable waters, the territorial seas, and interstate waters (Jurisdictional Waters)
2. impoundments of Jurisdictional Waters (Jurisdictional Impoundments)
3. relatively permanent, standing or continuously flowing tributaries to either Jurisdictional Waters or Jurisdictional Impoundments (Jurisdictional Tributaries)
4. wetlands having a continuous surface connection to either Jurisdictional Waters, Jurisdictional Impoundments or Jurisdictional Tributaries (Jurisdictional Wetlands)
5. relatively permanent, standing or continuously flowing intrastate lakes and ponds with a continuous surface connection to (but are not themselves) a Jurisdictional Water, Jurisdictional Impoundment, Jurisdictional Tributary or Jurisdictional Wetland

As with the Biden Rule, the WOTUS Rule defines the term "wetland" to mean "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" and explains that wetlands generally include "swamps, marshes, bogs and similar areas." And consistent with Sackett, the WOTUS Rule requires jurisdictional wetlands to have a continuous surface connection to another jurisdictional water. However, the WOTUS Rule limits the impact of Sackett by failing to incorporate its express holding that "the CWA extends to only those wetlands that are as a practical matter indistinguishable from [Jurisdictional Waters, Jurisdictional Impoundments, or Jurisdictional Tributaries]." Under Sackett, the required surface connection must be sufficiently substantial so as to "mak[e] it difficult to determine where the 'water' ends and the 'wetland' begins," a qualifier that is absent from the WOTUS Rule. This is not discussed in the WOTUS Rule. Moreover, the WOTUS Rule fails to further define terms such as "relatively permanent" or "continuous," apparently defaulting to further nonrule guidance. This omission may encourage CWA enforcement actions concerning purported jurisdictional wetlands that do not actually meet the Sackett wetland standard. If so, this aspect of the WOTUS Rule will likely be the subject of future litigation.

WOTUS Rule Exclusions

The WOTUS Rule retains the Biden Rule's stated categories of waters that are excluded from CWA jurisdiction. As with the Biden Rule, the WOTUS Rule expressly excludes: 1) waste treatment systems, 2) prior converted cropland designated by the Secretary of Agriculture (subject to a "change of use" reversion), 3) ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water, 4) artificially irrigated areas that would revert to dry land if the irrigation ceased, 5) artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing, 6) artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons, 7) waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand or gravel unless (subject to an "abandonment" reversion), and 8) swales and erosional features (e.g., gullies, small washes) characterized by low-volume, infrequent or short-duration flow. The WOTUS Rule also retains Biden Rule clauses that allow agencies to recapture jurisdiction under certain circumstances. For example, when assessing the jurisdictional status of a ditch, the agencies will evaluate the entire reach of the ditch to determine if it has relatively permanent flow consistent with the reach approach for tributaries.

Notably, the WOTUS Rule does not expand on the Biden Rule's list of CWA exclusions, even though the Sackett opinion makes clear that certain categories of waters formerly regulated under the Biden Rule are not subject to the CWA. For example, the Sackett court expressly rejects EPA's argument that CWA jurisdiction encompasses wetlands that lack a continuous surface connection to a jurisdictional water but are nevertheless "bordering, contiguous [to], or neighboring" such jurisdictional water. Despite this Supreme Court holding, the WOTUS Rule does not clearly exclude "bordering, contiguous, or neighboring" wetlands from CWA jurisdiction. Similarly, the WOTUS Rule does not expressly exclude from CWA jurisdiction intermittent or ephemeral channels such as desert arroyos, even though Sackett expressly holds that "the Rapanos plurality was correct" in determining that WOTUS only includes relatively permanent, standing or continuously flowing bodies of a water and even though the Rapanos plurality expressly held that WOTUS "does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall."

The Rapanos plurality opinion explains in a footnote that, by describing WOTUS as "relatively permanent," that requirement "do[es] not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought[,]" and "do[es] not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months." This explanation is noted in the preamble to the WOTUS Rule and may explain the WOTUS Rule's failure to expressly exclude intermittent or ephemeral channels from CWA jurisdiction, assuming the agencies equate intermittent or ephemeral channels such as desert arroyos with streams that "might dry up in extraordinary circumstances" or "seasonal rivers" that have "no flow during dry months." Such an interpretation, however, is at odds with Sackett and the Rapanos plurality. After all, the Rapanos plurality expressly excludes intermittent and ephemeral channels and further explains that even seasonal rivers with no flow during dry months normally have a continuous flow of water, citing as an example a seasonal river that continuously flows 290 days of the year but is dry the remainder of the year. In contrast to such seasonal rivers, the intermittent and ephemeral desert channels excluded by the Rapanos plurality are normally dry and may flow with water just a few days of the year during storm events. In any case, the WOTUS Rule's failure to expressly exclude intermittent and ephemeral channels from the definition of WOTUS likely invites future litigation over the jurisdictional status of the desert arroyos and drainage channels that characterize the arid Southwest United States, even though a fair reading of Sackett indicates that such channels are not subject to the CWA.

Conclusion

The WOTUS Rule appears to be as narrow of an application of the Sackett decision as the Biden Administration thought possible. While parroting back certain language of the Supreme Court, the WOTUS Rule fails to truly define what constitutes a "relatively permanent" waterbody or a "continuous" connection between a wetland and such a water. While it was expected that the Sackett decision would result in the exclusion of ephemeral waters that only possess water following a rainfall event, the WOTUS Rule attempts to dodge that limitation. The agencies also plan on issuing further guidance and hint that they can provide guidance through approved jurisdictional determinations. Further litigation from all sides seems inevitable.

Notes

¹ 33 C.F.R. Part 328 (2022).

² 40 C.F.R. Part 120 (2022).

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