Environmental Law Matters

On December 30, 2022, EPA and the U.S. Army Corps of Engineers (Corps) (together the Agencies) issued a prepublication version of the latest definition of Waters of the United States (WOTUS). It will become effective when published in the Federal Register in 60 days. The Preamble to the new Rule describes a somewhat monumental comment period, including a review of more than 120,000 comments and listening sessions with various groups, and virtual calls with state governments. Yet, after all of that, the Agencies decided that what they had been doing for the past 45 years was quite fine, thank you, and added some detail on significant nexus. The Rule effectively re-promulgates the 1986 Corps Rules except for a requirement that tributaries have a significant nexus to other jurisdictional waters. By highlighting the Agencies’ 45-years of experience in implementing the previous rule, the Rule may be a backhand slap to President Trump 45’s Navigable Waters Protection Rule (NWPR) which the Biden 46 EPA would not defend. After all, the Rule uses the 45-year experience more than 100 times in its preamble to justify not making much change. While the EPA planned to publish the Rule by the end of the year, some thought the Agencies would wait until the result of the Sackett v. EPA Supreme Court case argued this past October, and a decision expected in early Spring. The Sackett case may once again require some change in the regulations.

With Justice Gorsuch’s dissent in the recent decision to deny certiorari in Buffington v. McDonough, 598 U.S. (2022) still fresh in the court’s mind, it is also apparent that Preamble to the Rules could be a defensive move by the Agencies. Justice Gorsuch opines on page 16 of his dissent:

At this late hour, the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts. Someday soon I hope we might.

The Rule is written exactly as the Agencies are enforcing it now, and substantially the same as it was in 1986. The Agencies started with the 1986 rules, and added some to the 2007 guidance that came out after Rapanos v. EPA (Citations Omitted). The Agencies’ Rule designates the following as “waters of the U.S.” at 42 CFR 328.3.

Waters of the United States means:

(1) Waters which are:

• Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
• The territorial seas; or
• Interstate waters, including interstate wetlands;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:

• That are relatively permanent, standing or continuously flowing bodies of water; or
• That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(4) Wetlands adjacent to the following water:

• Waters identified in paragraph (a)(1) of this section; or
• Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or
• Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:

• That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or
• That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.

As noted, this definition is almost identical to the 1986 Corps Rule. However, the Rule stresses a “tributary” must have a significant nexus to traditional navigable water, interstate water, or impoundment of those waters as addressed in the 2007 Rapanos guidance. The Agencies intentionally did not define the term tributary; rather they relied on their 45 years of experience determining tributaries to properly interpret this term. The 2015 version of the rule deemed that all tributaries had a significant nexus. While that specification was not added to the Rule, many commenters believed the rules should continue to exclude ephemeral streams (wet weather conveyance) as tributaries as allowed by the more recent NWPR. However, the Rule requires that a tributary that either “alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1).” Therefore a tributary of any kind would first be considered a WOTUS along with adjacent wetlands unless it fails the significant nexus test. The Agencies clarified the applicant must evaluate stream and/or wetland features in the entire catchment area of the Paragraph (a)(1) waters to determine significance.

The Rule defines “Significantly affect” as:

To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) of this section will be assessed and the factors identified in paragraph (c)(6)(ii) of this section will be considered

Functions to be assessed:

1. Contribution of flow;
2. Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
3. Retention and attenuation of floodwaters and runoff;
4. Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
5. Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section;

Factors to be considered:

1. The distance from a water identified in paragraph (a)(1) of this section;
2. Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
3. The size, density, or number of waters that have been determined to be similarly situated;
4. Landscape position and geomorphology; and
5. Climatological variables such as temperature, rainfall, and snowpack.

However, the Agencies pointed out that ephemeral streams in the arid west were different than in other regions. Ephemeral streams are therefore waters of the United States if they have a significant nexus to traditional navigable water.

One might recognize some of these factors that Justice Breyer stated were the “functional equivalent” of Waters of the United States in City of Maui v. Haw. Wildlife Fund. The Rule also left the current exclusions in place as with the 1986 Rule:

A definition of adjacent wetland that had been controversial in the past was added to assure consistency with the 1986 Rule.

Finally, the Rule sets out a definition of adjacent wetlands:

Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”

The NWPR used the term “abutting” instead of adjacent with respect to jurisdictional wetlands.

In essence, the Agencies view protection of Waters of the United States more holistically than a matter of state vs. federal waters. Once it has determined something is Waters of the United States, any waters, except perhaps groundwater, that have a significant nexus to traditional navigable water are federalized. Many states and commenters contended that small ephemeral streams were state rather than federal waters.

If nothing else, the Preamble to this Rule is worth keeping in a notebook. It provides some 200 pages of interpretations and clarifications that even lay people can understand and even provides a checklist for acquiring property to avoid violations.