Redefining the Waters of the U.S. (WOTUS) Rule: Future Impact of Water Protection, Regulation and Permitting

Description

On Jan. 18, 2023, the EPA and the USACE published a final rule effective Mar. 20, 2023, updating and redefining the term "WOTUS" under the CWA. The final rule represents both (1) a codification of the agencies' pre-2015 approach to determining the extent of WOTUS and (2) a middle ground between the WOTUS rules of the last two administrations. As compared to the Trump administration's Navigable Waters Protection Rule, the final rule protects more wetlands and streams, although it does not extend so far as to protect truly isolated wetlands.

More specifically, in the final rule, the agencies construe the term WOTUS to include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands, and other waters that meet either the Relatively Permanent standard or the Significant Nexus standard. On the other hand, the final rule excludes from the definition of WOTUS prior converted cropland, waste treatment systems, ditches (including roadside), artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, water-filled depressions, swales, and erosional features.

In determining whether a tributary, adjacent wetland, or other water falls within the definition of WOTUS, the final rule relies on a two standard approach that stems from the Supreme Court's 2006 decision in Rapanos v. United States: (1) the Relatively Permanent standard; and (2) the Significant Nexus standard. The Relatively Permanent standard establishes jurisdiction with respect to relatively permanent, standing, or continuously flowing waters with a continuous surface connection to traditional navigable waters, territorial seas, or interstate waters. Under the Significant Nexus standard, a waterbody or waterbodies must significantly affect the chemical, physical, or biological integrity of traditional navigable waters, territorial seas, or interstate waters.

Importantly, the pending U.S. Supreme Court case of Sackett v. EPA may serve to unsettle the legal basis of the new WOTUS rule. The case involves a landowner's challenge to the agencies' assertion of jurisdiction over wetlands that are allegedly "adjacent" to other jurisdictional waters, and could serve as a vehicle for the Supreme Court to establish a new legal standard for determining the scope of jurisdiction under the Clean Water Act. So, while the agencies have done their best to ensure that their new rule is legally durable under the Supreme Court's current precedent, the Sackett decision could abruptly change that legal foundation and give rise to new legal vulnerabilities.

Listen as our distinguished panel provides environmental attorneys with an analysis of the recent EPA and USACE final WOTUS rule. The panel will also provide guidance to counsel and offer best practices for understanding the ins-and-outs of how the current WOTUS definition may affect their clients' permitting strategies and other concerns.