The WOTUS Saga Flows On

In the past six years, there have been three different definitions of Waters of the United States (WOTUS), and the issue has generated controversy on all sides. In an effort to calm the waters, EPA and the US Department of the Army, US Army Corps of Engineers (the Corps), announced on June 9, 2021, their intent to revise the definition of WOTUS through two rulemakings—first, a foundational rule that will propose to restore longstanding protections, and a second rulemaking process that builds on that regulatory foundation. The Biden Administration released an unofficial, pre-publication version of the foundational rule on November 18, 2021, announcing a new proposed WOTUS rule. The proposed rule will formalize a return (with some important modifications) to the pre-2015 definition of WOTUS. The proposed rule is intended to replace the Trump administration’s Navigable Waters Protection Rule (NWPR), which was vacated in August of this year by an Arizona court, and keep the pre-2015 definition of WOTUS in place while the agencies move to Phase 2—consultation with states, Tribes, local governments, and stakeholders on the implementation of WOTUS and future regulatory actions.

The proposed rule would restore the 1986 regulations promulgated by the Corps codifying its definition of WOTUS (see pages 26-27 of the proposed rule), with modifications informed by the US Supreme Court decision in Rapanos and agency guidance issued in 2007 and 2008 implementing Rapanos. The modifications incorporate aspects of both the “relatively permanent” standard set forth in Justice Scalia’s plurality opinion and the “significant nexus” standard included in Justice Kennedy’s concurring opinion. Specifically, the proposed rule would:

• Retain the 1986 definition of WOTUS to include traditional navigable waters, which include “all waters that 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”;
• restore the longstanding categorical protections for interstate waters;
• retain the “other waters” category from the 1986 regulations but replace the interstate commerce test with the relatively permanent and significant nexus standards;
• retain the tributary provision of the 1986 regulations, but would also:
  • require that such tributaries meet either the relatively permanent standard or the significant nexus standard;
  • delete the cross reference to “other waters” from the list of waters to which tributaries may connect to constitute a jurisdictional tributary; and
  • add the territorial seas to the list of waters to which tributaries may connect to constitute a jurisdictional tributary;
• retain the definition of “adjacent” from the 1986 regulations (“bordering, contiguous, or neighboring” and including “wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like”), with the added requirement that “adjacent” wetlands must either be adjacent to a traditional navigable water, interstate water, or territorial sea, or otherwise fall within the adjacent wetlands provision and meet either the relatively permanent standard or the significant nexus standard; and
• maintain the prior converted cropland and waste treatment exemptions.

Phase 2 is underway. EPA and the Corps announced their intent on June 9, 2021, to host ten regionally focused roundtables where the agencies will select participants for one of ten geographically focused roundtables. The agencies are seeking diverse perspectives about the definition of WOTUS from agriculture, conservation groups, developers, drinking water/wastewater management, environmental organizations, environmental justice communities, industry, and others with interests in each region. While the proposed rule of Phase 1 aims to reduce the controversy around the WOTUS definition, Phase 2 is likely to experience stormier seas. 

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.