The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States (WOTUS) and regulating quality standards for surface waters.
Under the CWA, the EPA has implemented pollution control programs such as setting wastewater standards for industry. The EPA has also developed national water quality criteria recommendations for pollutants in surface waters.
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 effective March 20, 2023.
The latest ‘final’ 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,” according to an EPA news release. “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 traditional navigable waters, territorial seas, or interstate waters. To meet the relatively permanent standard, the water bodies must be relatively permanent, standing, or continuously flowing waters connected to traditional navigable waters, territorial seas, or interstate waters or waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, territorial seas, or interstate waters.
- Significant nexus is a test that clarifies if 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.
9th Circuit decision
In a new wrinkle for CWA authority, on February 21, 2023, a three-judge panel in the 9th Circuit Court of Appeals ruled that a California federal court judge “exceeded his authority in vacating an EPA regulation without first determining that the regulation was unlawful,” says a Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., article in JD Supra.
In a second case, another 9th Circuit district court judge had also previously “vacated the Trump Administration EPA’s regulations defining [WOTUS] without first determining that the regulations were unlawful,” the Mintz article adds. “In both cases, the Biden Administration EPA had requested a voluntary remand of the Trump Administration regulations with an eye toward doing what the Administrative Procedures Act [APA] requires to revise (or reverse) regulations.”
In both cases, the three-judge panel disagreed, ruling that “the district court lacked the authority [under the APA or in equity] to vacate the 2020 Rule without first holding it unlawful. We therefore must reverse the district court’s order [regarding the Section 401 rule] in its entirety and send this case back on an open record for reconsideration of the EPA’s remand motion.”
“If this holding is considered by the full Ninth Circuit Court of Appeals, and the full Court agrees with these three Judges, we could finally have a Ninth Circuit Court of Appeals Clean Water Act opinion affirmed by the Supreme Court breaking a streak continued with the Supreme Court’s opinion in Hawaii Wildlife Fund v. Maui and likely to continue with the Supreme Court’s opinion soon in Sackett v. EPA,” the Mintz article adds.
This holding by the three-judge panel leaves a Trump-era CWA rule in effect that made it impossible for Native American tribes and states to block approvals for federally licensed projects such as pipelines and coal terminals in their respective jurisdictions, according to Reuters.
However, the new CWA rule with the revised WOTUS definition will override the Trump-era regulation and restore the authority to state and tribal authorities to block potential projects.
Legal challenges to new WOTUS rule
As with any regulation, legal challenges are to be expected. WOTUS remains under fire. According to Bloomberg Law, there are at least five pending federal suits challenging the new WOTUS rule.
“Twenty-six states and a slate of agricultural and industry groups have joined the lawsuits seeking to vacate the EPA’s latest WOTUS rule defining the scope of waters protected under the Clean Water Act,” the Bloomberg article says. “The lawsuits claim the EPA is exceeding its authority and that the rule is overly vague and premature because it was finalized in January ahead of the high court’s future ruling in Sackett v. EPA, expected by June.
“Farmers believe that the new WOTUS rule will allow the EPA and the Army Corps of Engineers to claim that any sometimes-wet water feature on farms would be protected—an expansion of long-standing federal wetlands jurisdiction, said Travis Cushman, deputy general counsel for litigation and public policy for the American Farm Bureau Federation,” Bloomberg adds. “The American Petroleum Institute, National Association of Home Builders, National Association of Realtors and 13 other trade groups joined the Farm Bureau in its lawsuit challenging the rule, American Farm Bureau Association v. EPA, filed Jan. 18 in the US District Court for the Southern District of Texas.”
One of the latest suits was a coalition lawsuit filed by the U.S. Chamber of Commerce, the Kentucky Chamber of Commerce, and other associations against the EPA and the Army Corps of Engineers (Corps) in the U.S. District Court for the Eastern District of Kentucky on February 22, 2023.
“This case is about the latest attempt by two federal agencies to assert control over millions of miles of waters (from creeks and wetlands to ponds and dry land where water sometimes flows) and over millions of square acres of land (from state lands to farms to backyards) within some undefined geographic distance from those waters,” states the lawsuit. “This effort, embodied in a novel final rule, far exceeds the agencies’ statutory authority and is unconstitutional. The rule undermines the basic role of the states in our federal system of government. And it introduces even more regulatory uncertainty into an area already rife with confusion. What is more, the agencies audaciously issued the Rule at a time when the Supreme Court is considering the very question at the heart of the rule: what is meant by the statutory term [WOTUS]?”
The commonwealth of Kentucky alleges that the WOTUS rule violates the:
- CWA
- APA
- U.S. Constitution
“Kentucky also filed a Motion of Preliminary Injunction asking that EPA be enjoined from enforcing the WOTUS rule,” reports an article by Mitchell, Williams, Selig, Gates & Woodyard, PLLC. “Various industry groups and the Kentucky Chamber of Commerce also initiated a separate action seeking the same relief. The cases were consolidated. The CGs (conservation groups) subsequently filed a Motion seeking intervention of right and by permission.”
The CGs argue that their interests are different from the EPA’s in that they seek a different scope for the WOTUS rule and the EPA answers to a broader constituency.
However, the court held that the EPA and the CGs share the same interests and that the CGs failed to demonstrate the criteria to meet the standard for intervention by right.
“The Court declines to permit permissive intervention again holding that EPA will adequately represent the CGs’ interest,” Mitchell Williams says. In addition, it states that the intervention:
- Would prejudice the parties,
- Would burden judicial economy, and
- Would not address a unique argument that will contribute to the litigation.
“Therefore, the Court finds that allowing intervention would not serve the interest of judicial economy. The CGs will be allowed to file a memorandum amicus curiae to the extent they have a different perspective of the relevant issues.”
Many expect a decision by the U.S. Supreme Court in the Sackett case to provide a definitive answer regarding WOTUS. However, some analysts predict that the Sackett decision is unlikely to “strip the EPA of any authority to regulate wetlands until Congress speaks,” reports a Bloomberg Law opinion article analyzing the Sackett case by Peter Alpert, a partner at Ropes & Gray LLP.
A K&L Gates LLP Hub blog post suggests that the pending Sackett decision may be the reason “the EPA has included in its newest regulatory agenda, released 4 January 2023, plans to propose yet further refinements to the definition of WOTUS as early as November 2023. Through this second rulemaking, the Agencies have indicated that they ‘intend to consider further refinements [to the WOTUS rule] … in light of additional stakeholder engagement and implementation considerations, scientific developments, litigation and environmental justice values.’”