Updated September 8, 2023 to provide the Revised WOTUS Rule that was published on this date, effective immediately.
On August 29, 2023, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (USACE) jointly released the pre-published Rule: Revised Definition of ‘Waters of the United States’. The agencies advised they are intending to have the Rule become effective on the yet-to-be-announced date of publication in the Federal Register to eliminate further delay in implementation. While the language of the rule is known, it remains unknown how certain criteria will be applied in the field. Therefore, at this time Approved Jurisdictional Determinations remain on hold.
The Supreme Court’s opinion on Sackett, released May 25, 2023, referred to the most recent Waters of the U.S. Rule published on January 18, 2023 (January 2023 WOTUS Rule). Consequently, the agencies stated in the introductory portion of their recent rule that they could simply revise the January 18, 2023 rule to make it comport with the findings of the Supreme Court. Consequently, the agencies felt this revision of the Rule was straightforward enough that no public comment was solicited.
What Does the Rule Do?
Most significantly the rule did two things:
- Removes the “Significant Nexus Test.” This test, a result of the Rapanos¹ Supreme Court Case, allowed the EPA and USACE to evaluate waters (tributaries, ponds etc.) and wetlands, either separately or collectively, by whether they had a “material influence on the chemical, physical or biological integrity of waters of the United States”. Without such a test, these wetlands are no longer regulated under the Clean Water Act (CWA) unless they are Adjacent Wetlands.
- Revises the “Adjacent Wetlands” definition. Wetlands adjacent to the territorial seas, interstate waters, waters able to carry interstate commerce and their tributaries are regulated under the CWA. For most of the period from 1986 to 2023 the definition of adjacent wetlands remained unchanged. Over this period, a wetland that was “bordering, contiguous or neighboring” one of these other waterbodies was “adjacent” and thus regulated under the CWA. The Supreme Court looked back to the original CWA legislation and deliberations over the legislation and decided that this definition was overly broad and that instead only wetlands “having a continuous surface connection” should be regulated as adjacent.
What Are the Consequences of these Changes?
The consequence of these two changes is substantial.
- Tributaries can no longer simply have a “significant nexus” to the traditional waters regulated by the CWA. The Supreme Court in Sackett unanimously agreed with the plurality of the Supreme Court in Rapanos that tributaries had to be “relatively permanent, standing or continuously flowing bodies of water”. The plurality in that earlier case explained that “relatively permanent” waters did “not necessarily exclude streams, rivers or lakes that might dry up in extraordinary circumstances, such as drought” or “seasonal rivers which contain continuous flows during some months of the year but no flow during dry months”. Consequently, it appears the EPA and USACE will no longer regulate “ephemeral water bodies” that flow or contain water only immediately after rain events and are not receiving groundwater input for at least a season or longer. Examples include some shallow natural ravines, many road-side ditches and shallow depressions.
- Adjacent wetlands must, per the Sackett decision now have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between ‘waters’ and ‘wetlands’.” Wetlands now separated from traditionally regulated waters by berms or other obstructions (that are not themselves illegally placed) will no longer be regulated. Such wetlands can be thought of as “isolated” as they are no longer regulated by the Corps. So, this revised rule expands the number of isolated wetlands not regulated by the Corps under the CWA.
- Wetlands can no longer be regulated simply because they are interstate in nature (cross a state line) and must now meet the adjacency test. Otherwise, they will not be regulated by the Corps under the CWA.
When Will These Revisions Be Applicable to Wetland Delineations and Permits?
This rule is not being applied in the field at this time. The rule is not official until it is formally published in the Federal Register. Additionally, Mr. Andy Beaudet, Acting Chief of the Regulatory Branch of the Norfolk District USACE, advised that implementing guidance is forthcoming from USACE Headquarters to explain further how the regulation will be applied in the field. No timeline has been given to the District as to when the guidance will be available. Until then the regulation will not be used in the field because it cannot be implemented consistently and transparently. For example, the regulation did not define the phrase “continuous surface connection” used in the definition of “adjacent wetlands”. Details such as this are critically important so that consultants and USACE staff can have a shared understanding of the “ground rules” applicable in the field.
Does this Apply Everywhere in the United States?
On March 19, 2023 a District Court judge for the Southern District of Texas issued an order preliminarily enjoining the January 2023 WOTUS Rule in Idaho and Texas. On April 12, 2023 a District Court judge in North Dakota issued an order preliminarily enjoining in another 24 states the same January 2023 WOTUS Rule (see our April 14, 2023 Field Notes article). Consequently those 26 states and Kentucky (due to a third case) are not regulated by the January 2023 Rule and the EPA and Corps are applying a “pre-2015 regulatory regime.”
As a result, there is a bifurcated regulatory program in the United States (see map) but that is applying the same regulatory definitions:
Operative Definition of WOTUS as mapped by the US EPA. Accessed on August 30, 2023 at https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update
- Due to the ongoing litigation on the January 2023 Rule, the EPA and USACE will implement the definition of “waters of the United States” under the January 2023 Rule, as amended by the conforming rule, in 23 states (including Maryland, Delaware, and Pennsylvania), the District of Columbia, and the U.S. Territories.
- In the other 27 states (including Virginia), the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime and the Sackett decision until further notice. The pre-2015 regulatory regime did not include the term “significant nexus” and will have its definition of adjacent wetlands and other appropriate terms revised consistent with the Sackett decision and current regulations.
Does This Alter What My State Agency Regulates?
That answer will be specific to the state in which you are working.
As discussed in our June 29, 2023 Field Notes article Virginia DEQ Moving Forward with State Surface Water Determinations, the DEQ issued a memorandum to stakeholders that same day advising that, in short, “neither the State law nor the Virginia Water Protection Permit regulation is affected by the Sackett decision.” That is in part due to Virginia’s legislation passed in 2000 that defines state waters to include “all water, on the surface and under the ground, wholly or partially within or bordering the Commonwealth or within its jurisdiction, including wetlands.” The DEQ is now using their State Surface Water Determination process to confirm the limits of state waters and wetlands, to allow their permits to be initiated regardless of whether the USACE has issued a Preliminary or Approved Jurisdictional Determination.
In Maryland, the Maryland Department of the Environment (MDE) will continue to regulate all wetlands, whether they are isolated or not, as well as intermittent and perennial streams. Neither the USACE nor the MDE will regulate ephemeral streams.
So, What Now?
With the regulations released by EPA and USACE and nearing formal publication in the Federal Register, the public can read them and plan for their effect on property transactions and development. While the timing of their application in the field is unknown, WSSI believes the EPA and USACE are interested in providing written guidance sooner than later, hopefully weeks or months from now, not seasons from now. Once that guidance is available the USACE can issue Approved Jurisdictional Determinations again to verify which wetlands and waters are and are not regulated by the federal government. With that information, permits can be processed consistent with the new regulations, whether formally by the regulation itself in 23 states and the District of Columbia, or by interpretation as in Virginia and the other 26 states.
The Commonwealth of Virginia will continue to regulate all such aquatic resources but has written exemptions for certain activities. Similarly, Maryland will continue to regulate all such aquatic resources with the exception of ephemeral streams.
With time WSSI hopes the federal program will begin to run smoothly again. Whether and how the resolution of the three ongoing lawsuits impacts the federal program is the wildcard(s) that always seems to be dealt into the hand the public receives of late with each change in the federal CWA program.
Resources
- Final Rule: Revised Definition of ‘‘Waters of the United States,” published September 8, 2023
- New WOTUS Rule: The Merry-Go-Round Goes ‘Round, January 17, 2023
- Jurisdictional Determinations Impacted in Federal Court Decision, April 14, 2023
- Virginia DEQ Moving Forward with State Surface Water Determinations, June 29, 2023
- Pre-Publication Notice, August 29, 2023