EPA Issues Revised Federal Waters Rule as Court Ruling Looms (1)

The EPA and Army on Friday published a final waters of the US rule, defining the scope of federal jurisdiction over waters and wetlands in the US under the Clean Water Act.

The rule, which roughly reinstates a pre-2015 rule for waters of the US, or WOTUS, extends Clean Water Act protections to some waters and wetlands that aren’t directly connected to larger water bodies.

The rule sets out two standards for federal waters. One includes waters that are relatively permanent, standing, or continuously flowing, as well as waters with a continuous surface connection to such waters. The other is the “significant nexus” test, which determines whether bodies of water significantly affect the chemical, physical, or biological integrity of traditional navigable waters, seas, or interstate waters.

The rule also specifies bodies of water that aren’t covered, including prior converted cropland, waste treatment systems, artificial lakes and ponds, water-filled depressions created during construction activity, and ditches that don’t carry a relatively permanent flow of water.

The final rule codifies a WOTUS definition already in place after the Environmental Protection Agency scrapped the Trump-era Navigable Waters Protection Rule, which lifted protections on many waters and wetlands nationwide, especially ephemeral streams in the Southwest.

Supreme Court to Rule

The EPA and Army said the rule “provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities—all while protecting water quality.”

The regulation is the first of two EPA rulemakings expected to expand upon the pre-2015 rule, putting the Biden administration’s imprint on the definition of federally protected waters.

Each White House since 2008 has attempted to re-define WOTUS, expanding or contracting the scope of federal protections each time. But the US Supreme Court is expected to halt the pendulum’s swing when it rules in Sackett v. EPA in 2023.

The court is expected to narrowly define federally protected waters. The case involves Chantell and Michael Sackett of Idaho, who have been attempting for 15 years to build a house on land the federal government says includes federal waters.

Questions about the federal government’s ability to broadly define WOTUS remain unresolved since the high court failed in 2006 to definitively answer the question in Rapanos v. United States. Each successive White House since then has written its own definition conflicting with the previous one.

Definition Debate

“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” Assistant Secretary of the Army for Civil Works Michael L. Connor said in a statement.

EPA Administrator Michael Regan has said he wants to land on a durable definition of WOTUS that both Democrats and Republicans can agree on, and that permanently stops the perpetual tug of war from one administration to the next.

Regan told a House committee in 2021 that the EPA would move forward “not in a ping-pong way,” but in a way that balances wetland protection without overburdening small farmers.

Sen. Tom Carper (D-Del.), chairman of the Senate Environment and Public Works Committee, expressed the same hope, saying shortly after the final rule was released Friday that he hopes the new definition “will prove to be durable, unlike those from previous administrations.”

But Sen. Shelley Moore Capito (R-W.Va.), top Republican on the Environment and Public Works Committee, criticized the rule, saying it was “the latest round of regulatory overreach” from the Biden administration and an unfair burden on farmers, ranchers, miners, infrastructure builders, and landowners.