Vol. No. 53-2 Washington Update

Washington Update

Revising the Definition of “Waters of the United States”

In December 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army announced a new rule revising the definition of “waters of the United States.”[1] The final rule was published in the federal register on December 30, 2022 and became effective on March 20, 2023.[2] EPA and the Army (the Agencies) used legislative authority granted under the Clean Water Act to update the definition of “waters of the United States” and seek to reestablish water protections that existed prior to 2015.[3]

The Navigable Waters Protection Rule

Between 2015 and 2020, the definition of “waters of the United States” was revised three times.[4] The third revision resulted in the 2020 Navigable Waters Protection Rule (NWPR), which was the product of an executive order signed on February 28, 2017, under the Trump administration.[5] The NWPR was a departure from the pre-2015 rule that the Agencies had used for decades to define “waters of the United States.”[6] The NWPR excluded, for the first time, interstate waters, all ephemeral streams, and traditional navigable waters; some territorial seas also fit within the NWPR’s exclusions.[7]

Federal district courts in both Arizona and New Mexico remanded the NWPR at trial and vacated the rule. In the Arizona case, Pascua Yaqui Tribe v. EPA, the court stated that “[t]he seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”[8]

The court in New Mexico agreed, stating that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”[9] After these and several other federal district courts vacated or remanded the NWPR, EPA ceased to use that rule’s definition and reverted to the pre-2015 definition of “waters of the United States.”[10] These court decisions and EPA’s response triggered the new rulemaking.

On January 20, 2021, President Biden signed Executive Order 13990.[11] Some of the stated goals of the executive order were to “listen to the science; to improve public health and protect our environment; [and] to ensure access to clean air and water.”[12] As part of the executive order, all agencies were directed to “immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”[13] Review of the NWPR resulted in the Agencies’ decision to replace it.[14]

The New Rule

The Agencies’ revisions to the definition of “waters of the United States” are based on the pre-2015 paradigm, commonly referred to as the “1986 regulations,”[15] with the goal of making the new definition match the older rule.

Scope of the New Rule

The new rule brings previously excluded waters back into the category of jurisdictional waters. Under the new rule, the Agencies define “waters of the United States” as:

. . . [(1)] traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters”); . . . [(2)] impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”); . . . [(3)] tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”); . . . [(4)] wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); . . . [and (5)] intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard (“paragraph (a)(5) waters”).[16]

The Agencies stated that they believe this definition fits the objectives of the Clean Water Act, respects the Act’s limits, and aligns the rule with decades of scientific expertise and implementation experience.[17]

Limitations, Exclusions, and Agency Judgment

While the new rule brings certain waters back under Agency jurisdiction, like traditional navigable waters and territorial seas that had fit within one of the NWPR’s exclusions, it also creates exclusions based on the 1986 regulations.[18] These exclusions are largely based on the “relatively permanent” or “significant nexus” standards.[19] Tributaries, adjacent wetlands, lakes and ponds, streams, and wetlands that are not identified in paragraphs (a)(1) through (4) must meet either the relatively permanent standard or the significant nexus standard.[20] Under the rule, waters that do not meet one of these standards are not “waters of the United States.”

The Agencies state that the relatively permanent or significant nexus standards fit the Clean Water Act’s best available science requirement because “the ‘significant nexus’ standard established in [the] rule is based on an assessment of the effects of waters in these categories on the water quality of paragraph (a)(1) waters.”[21] Similarly, the “relatively permanent” standard results in various protections of the integrity of jurisdictional waters.[22]

Additionally, waters that do not fall within established categories may still be covered under the new rule. In the past, waters not within an established category could be covered if they had effects on water quality and on interstate commerce.[23] However, the new rule replaces the “interstate commerce” test with the relatively permanent and significant nexus standards used elsewhere in the rule.[24] Thus, Agencies cannot assert jurisdiction over non-navigable, intrastate waters solely because of the impact their use has on interstate or foreign commerce.[25]

Certain categorized and non-categorized waters may require fact-intensive consideration by the Agencies to determine whether they fall under agency jurisdiction. The Agencies, as always, have authority to include or exclude waters from “waters of the United States” on a case-by-case basis.[26]

Response to and Current Status of the New Rule

While the new rule generally returns to the older definition of “waters of the United States,” its publication quickly faced pushback from numerous states. Twenty-five states formed a coalition to challenge the rule;[27] many are the same states that challenged the 2015 expansion of the rule under the Obama administration.[28] Those lawsuits led to the revisions from 2015 to 2020, ultimately resulting in the Trump administration’s NWPR.[29]

These states seek a preliminary injunction to prevent the rule from taking effect and argue that the new rule is an overreach.[30] However, the NWPR has been vacated or remanded by several federal district courts, and the Agencies are using the pre-2015 definition of “waters of the United States” pending implementation of the new rule.[31] One potential sticking point for the new rule is the Supreme Court’s decision in Sackett v. EPA, which may impact whether the Biden administration decides to propose a second new definition of “waters of the United States” at the end of 2023.[32]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Philadelphia, PA office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

Stephen DeVinney is a 3L from New Port Richey, Florida. He graduated from the University of Florida and joined TELJ during his second year of law school. Stephen discovered an interest in the legal issues surrounding water quality and environmental toxics in law school, and he will be working in litigation for the Office of the Texas Attorney General after graduation.