Since 2015, the legal definition of “Waters of the United States” (WOTUS) has changed 3 times and there is still no end in sight. Industries affected by these changes have been forced to navigate a confusing, changing landscape that make sound planning and investment decisions even more complicated.
In January, President Biden pledged that his Administration would create a durable WOTUS definition that would offer clarity and consistency while also protecting the nation’s important aquatic resources. On December 7, the US Army Corps of Engineers and the Environmental Protection Agency (EPA) proposed the latest WOTUS revisions in the Federal Register for 60 days of public comment. This new proposal reanimates most of the WOTUS regulatory rules in existence prior to President Obama’s 2015 rule change.
It remains to be seen whether this “back to the future” approach will finally be durable or will extend the legal delays and confusion.
The Biden WOTUS Proposal
The Administration’s new proposal seeks to reverse the Trump Administration’s 2020 rule that focused on surface hydrologic connections between a wetland, an intermittent stream and flowing navigable waters. That Navigable Waters Protection Rule (NWPR) largely followed Justice Scalia’s opinion in the Supreme Court’s 2006 Rapanos decision by removing the regulation of ephemeral and isolated waters and wetlands and deferring to state and local regulation.
In doing so, the 2020 Rule essentially rejected Justice Kennedy’s Rapanos opinion that focused on ecologic connection – the so called “significant nexus” test. Many industries praised the Trump rule but environmentalists largely criticized it for removing important aquatic resources from federal regulation, especially in arid areas of the West. That Rule was much more restrictive than the broad 2015 Obama rule, which largely followed the Kennedy test by categorically “sweeping in” aquatic resources with a tenuous and indirect connection to navigable streams.
On August 30, an Arizona Federal Judge vacated the Trump rule rejecting the Biden Administration’s plan to keep the rule in effect until a new rule was issued. (For more on this decision, click here.) That ruling was followed by a similar decision by a New Mexico federal judge. As a result, EPA and the Corps reverted to the pre-2015 regulatory rules that applied the 1986 definition as updated by 2008 post-Rapanos guidance using both the Scalia and Kennedy tests.
The recent proposal seeks to formally rescind the 2020 rule, update the pre-2015 guidance as the first step and then issue a new durable rule that could finally end the WOTUS saga.
The Proposal would:
Keep the 1986 WOTUS definition to include “Traditionally Navigable Waters”—those waters that are currently used or in the past for interstate or foreign commerce
Restore protections for Interstate waters and wetlands
Restore the tributary provision of the 1986 regulation focusing on finding evidence of flow on the ground (the “Ordinary High Water Mark”) with jurisdiction based on either relatively permanent flow test or the significant nexus test
Reinstating regulation of isolated or ephemeral “other waters” that meet either test.
Restore the definition of “adjacent” wetlands from the 1996 regulations (“bordering, contiguous or neighboring” even if separated by barriers from a tributary)
Maintaining the prior converted cropland and waste treatment exemptions
The recent proposal raises a number of questions for the Biden Administration’s efforts to develop a durable rule:
Will the Administration’s plans to expedite infrastructure and clean energy projects be undermined by delays and mitigation costs from this new rule?
Can the Administration’s proposal be the vehicle for a durable rule or will the Administration need to follow its announced “phase two process” and issue a new rule to satisfy concerns of all stakeholders including developers, farmers, environmentalists, industry, public water agencies and environmental justice communities?
Given the extensive technical and legal analysis in the proposal, will this rule survive legal challenges including possible Supreme Court review?
Until a final WOTUS rule is issued, the regulated community should continue to follow the pre- 2015 rule and guidance currently in effect and carefully follow the changing WOTUS landscape for breaking developments.
Larry Liebesman, Esq.
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.