As of March 2023 there are three unique legal actions underway, each of which may affect the scope of headwaters protection for waterways across the United States, and especially for arid intermountain states like Montana whose stream miles include > 50% ephemeral or intermittent waters whose protections could be lost under more restrictive rulings.
On January 18, 2023, the long-awaited final “Revised Definition of ‘Waters of the United States (WOTUS)’” rule was published in the Federal Register. It is set to go into effect March 20, 2023. The definition of WOTUS is the key to determining the EPA’s authority under the Clean Water Act (CWA). This final rule repeals the Trump administration’s “Navigable Waters Protection Rule” and largely reverts to the pre-2015 WOTUS definition, with some new guidance and explanation.
The 2023 Rule has been challenged in Court by stakeholder groups and states. At the same time, the United States Supreme Court is anticipated to rule on the pending Sackett case, which may inform the scope of WOTUS for “adjacent” waters covered by federal law. Lastly, Congress is considering a resolution under the CRA authority to disapprove the 2023 WOTUS Rule.
The CWA was enacted by Congress in 1972 as the nation’s primary federal law regulating water pollution. The main goal of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251. To do this, the CWA established a permitting program that prohibits an unpermitted discharge of any pollutant from a point source into “navigable waters.” 3. U.S.C. § 1342.
Because permits for discharges are only required for those discharges made into navigable waters, the term is key to understanding which waters are subject to CWA jurisdiction. The text of the CWA defines the term navigable waters as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). However, the term WOTUS is not further defined in the statute. Instead, EPA, the federal agency tasked with administering the CWA, has been responsible for defining the term. Since 1972, EPA has redefined WOTUS several times.
The most recent definition of WOTUS was adopted by EPA in 2020. The NWPR was drafted, in part, due to multiple courts across the country preventing the implementation of the previous WOTUS definition which was adopted by EPA in 2015. The NWPR was narrower than the 2015 rule, limiting what was included in the definition of WOTUS to six categories of waterbodies. This was in contrast to the 2015 rule which was broad and required a case-by-case analysis for various types of waterbodies. The 2015 rule was itself a response to decisions from the United States Supreme Court interpreting the definition of WOTUS according to regulations EPA had passed in the 1980s.
Prior to formally adopted the NWPR, EPA had issued a final regulation repealing the 2015 rule. By doing so, EPA returned to the regulatory regime that had been in place before the 2015 rule was passed, meaning that for a limited period of time EPA was interpreting WOTUS according to the 1980s regulations and memoranda issued by the agency in response to Supreme Court decisions. When the Arizona district court vacated the NWPR, it caused the legal definition of WOTUS to revert to what it had been before the NWPR went into effect. This means that until EPA adopts a new WOTUS definition, or until it is ordered by a court to do differently, EPA will be interpreting WOTUS according to the 1980s regulations and accompanying memoranda.
In the CWA language, Congress broadly defined “navigable waters” as “the waters of the [U.S.], including the territorial seas.” In 1980, EPA issued a final regulation to redefine WOTUS. This was only the second time that EPA had done so. By 1982, the Army Corps of Engineers (“Corps”), which administered the dredge and fill program under the CWA, had also adopted the 1980 definition.
According the 1980 rule, WOTUS is defined as:
- All waters that have been used or could be used in interstate or foreign commerce,
- All interstate waters,
- All other waters that could affect interstate or foreign commerce if the waters were degraded or destroyed,
- The territorial seas,
- Impoundments of any waters described in the rule,
- Tributaries of any waters described in the rule, or
- Wetlands adjacent to any waters described in the rule.
The 1986 definition remained stable until 2015 during the Obama administration. Under this definition, some waters are more easily identifiable as falling under CWA jurisdiction than others. For example, it is obvious that the Mississippi River would qualify as a WOTUS because it has both been used to facilitate interstate commerce, and is an interstate water. Additionally, the Pacific Ocean would clearly be a WOTUS because it is a territorial sea. However, identifying waters that were located entirely within the boundaries of one state but still fell under the jurisdiction of the CWA because their degradation or destruction would affect waters that crossed state lines proved to be a challenge. Particularly when it came to wetlands. That confusion ultimately resulted in lawsuits that made their way to the United States Supreme Court for further clarification.
Supreme Court WOTUS Cases
Three different U.S. Supreme Court (SCOTUS) cases have addressed the definition of WOTUS.
- In the 1985 United States v. Riverside Bayview Homes, Inc., case, SCOTUS “deferred to the Corps’ assertion of jurisdiction over wetlands actually abutting a traditional navigable water, stating that adjacent wetlands may be regulated as waters of the [U.S.] because they are ‘inseparably bound up’ with navigable waters and ‘in the majority of cases’ have ‘significant effects on water quality and the aquatic ecosystem’ in those waters.”
- In the 2001 Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) case, SCOTUS determined that there was no federal jurisdiction “over nonnavigable, isolated, intrastate ponds that lack a sufficient connection to traditional navigable waters. …”
- In the 2006 Rapanos v. United States case, a four-justice SCOTUS plurality determined WOTUS ‘‘include[ ] 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,’” and ‘‘wetlands with a continuous surface connection’’ to a ‘‘relatively permanent body of water connected to traditional interstate navigable waters.’’
However, Justice Anthony Kennedy wrote a lone concurring opinion that concluded “to constitute ‘navigable waters’ under the Act, a water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
The term “significant nexus” is defined as waters that form a sufficiently great central link or connection. It’s similar to standing in the middle of a large intersection.
Regarding the above “precedent-setting” cases, instead of following Justice Antonin Scalia’s plurality opinion that narrowly interpreted “navigable waters,” lower courts and the government “uniformly followed Justice Kennedy’s lone opinion.
Pending SACKETT Supreme Court Case
Oral arguments in Sackett v. EPA were heard October 3, 2022; it was the first case on SCOTUS’s fall docket. The decision in the Sackett case has been expected to form a legal precedent determining where SCOTUS stands regarding the Rapanos case—with Scalia’s narrow interpretation of “navigable waters” or Kennedy’s broader “significant nexus” test.
The facts of the case are that the Sacketts purchased a small parcel of land on wetlands 100 yards from Priest Lake in Idaho. Their property is separated from the lake by a roadway. When the Sacketts began filling their property to start construction on their home, the EPA stepped in and said they must apply for a Section 404 permit to fill their “wetland” property. They began battling the EPA in court approximately 20 years ago.
Legal counsel for the Sacketts “argue that the roadway relieves them of the need to apply for a Section 404 permit because it severs any physical connection between the wetland and the lake, rendering the wetland non-‘adjacent’ and therefore non-jurisdictional under the test articulated by Justice Antonin Scalia in the court’s 2006 decision in Rapanos v. United States,” Peter Alpert, partner at Ropes & Gray LLP, writes in an opinion article analyzing the Sackett case in Bloomberg Law.
“The EPA argues that the Sacketts’ wetland is jurisdictional under Justice Anthony Kennedy’s opinion in Rapanos, which articulated a broader, ‘nexus’-based test for identifying wetlands that the EPA may regulate for the sake of water quality, and also under regulations through which the EPA and the Corps administered the Section 404 program long before Rapanos was decided,” Alpert says.
During oral arguments in the case, some of the justices focused their questions on the term “adjacency,” with counsel for the Sacketts arguing that in this context, it is defined as “touching,” but Chief Justice John Roberts pointed out that train tracks are adjacent to train stations, yet they do not physically touch one another.
“ … Justice Brett Kavanaugh noted that in the 50 years since the act was passed, the agency has consistently said wetlands and other waters are covered, even when they do not flow into other waters. Near the end of the argument, Justice Kavanaugh wondered whether bringing clarity to the language of the act was the responsibility of Congress rather than the courts.”
New Biden Administration WOTUS Rule
“This rule establishes a durable definition of [WOTUS] that is grounded in the authority provided by Congress in the [CWA], the best available science, and extensive implementation experience stewarding the nation’s waters,” an EPA news release says. “The rule returns to a reasonable and familiar framework founded on the pre-2015 definition with updates to reflect existing Supreme Court decisions, the latest science, and the agencies’ technical expertise. It establishes limits that appropriately draw the boundary of waters subject to federal protection.”
The rule defines seven categories of waters that fall under CWA authority:
- Traditional navigable waters: Large rivers and lakes that could be used in interstate or foreign commerce, as well as water bodies affected by tides.
- Territorial seas: Territorial seas that extend 3 miles out to sea from the coast.
- Interstate waters: Include waters like streams, lakes, or wetlands that cross or form part of state boundaries.
- Impoundments: Impounded bodies of water created in or from WOTUS, like reservoirs and beaver ponds.
- Tributaries: Branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into traditional navigable waters, the territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.
- Adjacent wetlands: These wetlands can be next to, abutting, or near other jurisdictional waters or behind certain natural or constructed features. They are most often within a few hundred feet of jurisdictional waters. Adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard or where the wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water.
- Additional waters: These lakes, ponds, streams, or wetlands do not fit into the above categories. They are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.
It also provides definitions for both “relatively permanent” and “significant nexus”:
- Relatively permanent is a test that provides important efficiencies and clarity for regulators and the public by readily identifying a subset of waters that will virtually always significantly affect the categories of waters defined above. To meet the relatively permanent standard, the water bodies must be relatively permanent, standing, or continuously flowing waters connected to the categories of waters defined above with a continuous surface connection to such relatively permanent waters or to the categories of waters defined above.
- Significant nexus is a test that clarifies whether certain water bodies, such as tributaries and wetlands, are subject to the CWA based on their connection to and effect on larger downstream waters that Congress fundamentally sought to protect. A significant nexus exists if the water body (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.
The rule also codifies eight exclusions to WOTUS:
- Prior converted cropland, adopting the U.S. Department of Agriculture’s (USDA) definition and generally excluding wetlands that were converted to cropland before December 23, 1985;
- Waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the CWA;
- Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;
- Artificially irrigated areas that would revert to dry land if the irrigation ceased;
- Artificial lakes or ponds created by excavating or diking dry land that are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
- Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land;
- 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 and until the construction operation is abandoned and the resulting body of water meets the definition of “WOTUS”; and
- Swales and erosional features (e.g., gullies or small washes) that are characterized by low-volume, infrequent, or short-duration flow.
Litigation Over the 2023 WOTUS Rule
The first two lawsuits were filed on January 18, 2023, and have been consolidated in the U.S. District Court for the Southern District of Texas. First, Texas argues the rule unlawfully expands the Corps and EPA’s jurisdiction beyond the bounds of the CWA, violates the major questions doctrine because the CWA does not authorize the agencies to determine the scope of their own jurisdiction, intrudes upon state sovereignty, and violates due process by failing to provide adequate notice of what conduct is prohibited under the statute.
Second, a coalition of agricultural and industry groups argues that the rule is unsupported by law and scientific and economic evidence; violates the Commerce Clause, the Due Process Clause of the Fifth Amendment, the major questions doctrine, and the nondelegation doctrine; exceeds the Corps’ and EPA’s statutory authority; and unlawfully fails to include a regulatory flexibility analysis. An environmental group has intervened in the lawsuits in support of the Corps and EPA.
Third, a group of 24 states has challenged the 2023 WOTUS Rule in the U.S. District Court for North Dakota. In addition to Texas-style arguments, the state plaintiffs allege that the rule violates the APA because the final rule is not a “logical outgrowth” of the rule the agencies proposed in December 2021 and that the rule violates the Tenth Amendment by asserting federal jurisdiction over intrastate waters and lands that are ordinarily regulated by states. The agricultural and industry groups challenging the rule in Texas are seeking to intervene in North Dakota in support of the state plaintiffs.
Finally, the Commonwealth of Kentucky has challenged the 2023 WOTUS Rule in the U.S. District Court for the Eastern District of Kentucky, raising similar allegations to those made by Texas and state plaintiffs.
Both sets of plaintiffs in the Texas lawsuits, as well as the state plaintiffs in the North Dakota lawsuit, have asked the courts to bar implementation of the 2023 WOTUS Rule while the litigation is pending. The Courts have not yet ruled on the motions. As in the litigation over the 2015 and 2020 rules, the issuance of one or more preliminary injunctions would limit the applicability of the rule and leave in place the prior regulatory framework where any such injunction was in effect.
Other stakeholders could also challenge the 2023 WOTUS Rule. Consistent with the statute of limitations for APA claims, potential litigants would generally be required to file suit within six years after their claim accrues. Early lawsuits will be most closely watched, as they will be the courts’ first opportunities to issue rulings that may be binding in later cases, and because they will occur before the regulated public has substantially relied on the rule.
What’s In Effect Now?
The 2023 WOTUS Rule is scheduled to take effect on March 20, 2023. Until the 2023 WOTUS Rule takes effect, the pre-2015 regulatory framework applies, as it has since a federal district court vacated the Navigable Waters Protection Rule in August 2021.
Litigation could change which rule is in effect. Previous lawsuits challenging the Clean Water Rule and the Navigable Waters Protection Rule resulted in preliminary injunctions and other rulings that barred implementation of the challenged rule and resulted in a prior regulatory framework returning to effect, at least in some places. Parties challenging the 2023 WOTUS Rule have sought injunctions, which if granted could create similar outcomes and limitations on the rule’s implementation.
A question Waterkeeper is asked often concerns previous agency determinations made under a now unlawful rule. A change in regulatory regime does not result in the retroactive application of a new rule to all potentially covered waters. In particular, the transition to the 2023 WOTUS Rule does not necessarily invalidate approved jurisdictional determinations (or AJDs), which the Corps issues to identify whether a particular parcel of land contains WOTUS, and which may be used in the CWA permitting process.
Approved jurisdictional determinations completed when the Navigable Waters Protection Rule or pre-2015 regulatory framework was in effect will not be reopened before their expiration date unless they satisfy specific criteria for revision. Additionally, enforcement actions for violations of the CWA are typically based on the statutory and regulatory framework that was in effect at the time the violations occurred, even if the rule has since changed.
What’s Congress Doing?
The scope of WOTUS has continued to be of interest in the 118th Congress. On February 8, 2023, the House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and the House of Representatives and 49 Senators sponsored or consponsored joint resolutions that Environment held a hearing regarding the 2023 WOTUS Rule. Additionally, 152 Members of the House of Representatives and 49 Senators sponsored or consponsored joint resolutions that would disapprove the rule.
The resolutions were introduced under the Congressional Review Act (CRA), a law that allows Congress to overturn certain agency actions in the form of a joint resolution of disapproval. Under the CRA, if both houses pass a resolution for disapproval, it is sent to the President for signature or veto. If the President were to veto a resolution, Congress could vote to override the veto with a two-thirds majority in both chambers. If a joint resolution of disapproval is submitted within the CRA-specified deadline, passed by Congress, and signed by the President (or if Congress votes to override a presidential veto), the disapproved rule “shall not take effect (or continue),” and would be deemed not to have had any effect at any time. Furthermore, if a joint resolution of disapproval is enacted, the CRA provides that a rule may not be issued in “substantially the same form” as the disapproved rule unless it is specifically authorized by a subsequent law.
As of March 7th, 2023 Congress has not utilized the CRA to pass a resolution of disapproval for the Biden Administration’s WOTUS Rule although the potential remains.