Background

The CWA applies to “navigable waters,” which phrase is unhelpfully defined as “waters of the United States.” What constitutes WOTUS significantly impacts when CWA permits are needed for pollution discharges and wetland filling. The definition of WOTUS, however, has been in flux for twenty years (since Rapanos v. United States, 547 U.S. 715 (2006), in which the Supreme Court failed to rule by a clear majority on certain WOTUS boundaries). Justices in Rapanos articulated two disparate standards to determine WOTUS boundaries: the “significant nexus” standard advocated by Justice Anthony Kennedy and the “relatively permanent” standard expressed by Justice Antonin Scalia. The “significant nexus” standard designates waters or wetlands adjacent to traditional navigable waters as WOTUS if they have a significant nexus or impact on the traditional navigable waters protected under the CWA. The “relatively permanent” standard limits the definition of WOTUS to those waters connected to the traditional navigable waters and are relatively permanent or continuously flowing bodies of water.

The new rule is the third attempt to define WOTUS by regulation in the last ten years, following the Clean Water Rule (80 Fed. Reg. 37053) promulgated by the Obama administration (based upon the “significant nexus” standard), which was tightened substantially by the Navigable Waters Protection Rule promulgated by the Trump administration (more closely following the “relatively permanent” standard). The Navigable Waters Protection Rule was invalidated by a federal court in 2021, leading the Biden administration to promulgate this new rule. Publishing a final rule now is likely in anticipation of Sackett, the outcome of which may limit or disregard the “significant nexus” standard as the main standard used to determine what waters fall under federal jurisdiction.

Proposed Changes Under New Rule

The new rule incorporates both Justice Kennedy’s “significant nexus” standard, which will be utilized in certain circumstances, and Justice Scalia’s “relatively permanent” standard.

Under paragraph (a) of the new definition, waters of the United States are defined as follows:

• Traditional navigable waters, the territorial seas, and interstate waters;

• Impoundments of waters of the United States;

• Tributaries to traditional navigable waters, the territorial seas, interstate waters, or waters under paragraph (a)(2) when the tributaries are either “relatively permanent” or “significantly affect” the waters in (a)(1) (“jurisdictional tributaries”);

• Wetlands i) adjacent to paragraph (a)(1) waters, ii) adjacent to and with a continuous surface connection to “relatively permanent” paragraph (a)(2) impoundments or to “relatively permanent jurisdictional tributaries, and iii) adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands “significantly affect” waters in (a)(1) (“jurisdictional adjacent wetlands”); and

• Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that are either “relatively permanent” or “significantly affect” waters in (a)(1) (“(a)(5) waters”).

To be “relatively permanent,” the water must be relatively permanent, standing, or continuously flowing and be connected via surface water to adjacent waters. To “significantly affect” a water, either alone or in combination with similarly situated waters, a water must have a material influence on the chemical, physical, or biological integrity of a paragraph (a)(1) water. The rule lists numerous factors and functions that need to be assessed to determine if a water “significantly affects” another water.

The new definition provides additional clarity for waters that are specifically excluded. These excluded waters include some of the more controversial water features that have been inconsistently determined as jurisdictional in the past:

• Ditches draining dry land that do not carry a permanent flow of water;
• Irrigated lands that would revert to dry land if not irrigated;
• Artificial lakes or ponds created by excavating or diking dry land;
• Waterfilled depressions created in dry land incidental to construction activity and active sand and gravel mining; and
• Swales and erosional features with low volume, infrequent or short duration flow.

The Future of WOTUS

The pending Sackett decision, expected in 2023, may have a significant impact on the implementation of this rule. In addition, court challenges to the new rule have already been filed, including by the Attorney General of Texas and various industry groups. If the new rule is not stayed or invalidated by future court decisions, it will likely increase federal protections for waters, requiring permits for more projects that result in the discharge of pollutants into bodies of water or that fill in water or wetlands.

Fundamentally, the law surrounding which waters and wetlands constitute WOTUS will remain nebulous until further notice.

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