Tag: WOTUS

EPA PUBLISHES REVISED DEFINITION OF “WATERS OF THE UNITED STATES” IN RESPONSE TO SCOTUS’ SACKETT DECISION.

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) issued a final rule to amend the agencies’ earlier “Revised Definition of ‘Waters of the United States,’” published on January 18, 2023. (88 Fed. Reg. 3004.) The latest rule revises the definition of “waters of the United States” (WOTUS) to conform to the Supreme Court’s May 25, 2023 opinion in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651.

The highly anticipated Sackett decision resolved long-standing debate over the scope and definition of WOTUS under the Clean Water Act (CWA). The Court’s opinion considerably narrows the regulatory reach of the EPA and the Army by invalidating the agencies’ application of the “significant nexus” test and promulgating a limited interpretation of jurisdictional “waters” and “adjacent wetlands” that are covered by the CWA.

While the EPA and Army’s January 2023 WOTUS Rule was not directly before the Supreme Court, the Sackett decision made clear that certain aspects of the that Rule were invalid, in turn creating further uncertainty for CWA implementation. The August 2023 Rule (also referred to as “the Conforming Rule”) thus responds to Sackett by amending only those components of the rule’s regulatory text that are now invalid under the Supreme Court’s interpretation of the CWA—namely, removing the “significant nexus” standard and amending the definition of “adjacent” waters. By expeditiously issuing these amendments, the agencies assert the final rule provides much-needed clarity and a clear path forward that is not only consistent with the Supreme Court’s ruling, but allows the Army Corps to resume issuing jurisdictional determinations (which have been put on hold in some Corps’ Districts).

A summary of the August 2023 Rule’s key amendments and its timeline for implementation are summarized below:

Key Regulatory Amendments

To align with the Sackett holding, the August 2023 Rule takes a surgical approach to make targeted revisions to selected portions of the January 2023 Rule that are implicated by the decision:

Removal of “Significant Nexus” Standard
The Sackett decision found that the agencies’ application of the “significant nexus” test to identify federally protected tributaries and other waters was inconsistent with the text and structure of the CWA. The August 2023 Rule thus removes all references to the standard.

As a result, tributaries, adjacent wetlands, and intrastate lakes and ponds that “significantly affect the chemical, physical, or biological integrity of [traditional navigable] waters” are no longer jurisdictional under the CWA. Along these lines, the Conforming Rule also eliminates the definition of “significantly affect,” which listed various factors and conditions that the agencies used to ascertain whether certain waters would have a material influence on the chemical, physical, or biological integrity of traditional navigable waters. These standards, according to the Court, were too nebulous for reasonable and understandable implementation and were inconsistent with the structure of the Clean Water Act.

Amended Definition of “Adjacent” Waters
To conform to Sackett, the August 2023 Rule also amends the WOTUS definition so that water can no longer be found “jurisdictional” based on the January 2023 Rule’s definition of “adjacent.” As such, wetlands are not “adjacent,” and thus, not jurisdictional under the CWA, solely because they are “bordering, contiguous, or neighboring…[or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes, and the like.”

Instead, “adjacent” tributaries, wetlands, and intrastate lakes/ponds are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water,” or have a continuous surface connection to navigable waters.

No More “Interstate Wetlands,” But Little Clarity on “Relatively Permanent” Wetlands
With the elimination of the “significant nexus” standard, tributaries, wetlands, and intrastate lakes/ponds that are “adjacent” to federal navigable waters are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water.” The August 2023 Rule also eliminates “interstate wetlands” from the definition of “interstate waters” that are subject to the CWA.

Notably, however, the August 2023 Rule provides little clarity into the factors that create “relatively permanent” waters. The Rule’s supplemental preamble explains that, under Rapanos, those waters do “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”

And, under Sackett, “waters”  encompass “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Wetlands are  WOTUS “when they 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.’” Nevertheless, under the Conforming Rule, it remains unclear the length of “relative permanency” a water must experience in order to qualify as jurisdictional under the CWA.

Finally, the August 2023 Rule removes “interstate wetlands” to conform to the Sackett decision’s determination that wetlands are not jurisdictional simply because they are interstate. Instead, under the Supreme Court’s interpretation of the CWA, the term “waters” refers to such ‘open waters’ such as rivers, lakes, and other waters that flow across or form a part of State boundaries.

Regulatory Interpretation & Agency Guidance
Unlike prior versions of the WOTUS rule, the August 2023 Rule’s proposed amendments note that the agencies will continue to interpret the remainder of the definition of WOTUS in a manner that is consistent with the Sackett decision. But the agencies reiterate that it is both reasonable and appropriate for the agencies to promulgate this rule as quickly as feasible, without notice and comment, in response to the Supreme Court’s significant holding.

In turn, the agencies concede that they will address any potential issues arising from implementation of the August 2023 Rule through appropriate avenues, such as approved jurisdictional determinations and CWA permits, issuing future guidance, subsequent notice and comment rulemaking, preparing agency forms and training materials, and holding stakeholder meetings to ensure the public has an opportunity to provide input on other issues they would like the agencies to address.

Thus, in practice, the agencies will develop guidance and take stakeholder input regarding the August 2023 Rule’s proposed amendments after it is published in the Federal Register and becomes effective, and not rely on pre-publication comment.

Severability Clause
As with the agencies’ January 2023 Rule, the August 2023 Rule similarly provides a severability clause that attempts to preserve as many portions as feasible in the event future litigation attempts to stay or invalidate the Rule. The August 2023 Rule reiterates that the WOTUS rule was crafted so that each portion or element is disjunctive and capable of operating independently. Therefore, if any provision is deemed legally invalid, that partial invalidation will not render the remainder of the Rule as also invalid. To this end, if applying any portion of the Conforming Rule is determined to be invalid, the agencies intend that the complete WOTUS rule, as revised, will remain applicable to all other circumstances. In other words, if any of the exclusions from WOTUS were deemed invalid, invalidating one exclusion would not necessarily have any practical impact on any other part of the definition of WOTUS.

Implementation Timeline

No Notice and Public Comment Process
Because the proposed amendments are change only those parts of the January 2023 rule that are invalid under Sackett, the EPA and the Army have decided to issue the August 2023 Rule without notice or an opportunity for public comment. Citing section 553(b)(B) of the Administrative Procedure Act (APA), the agencies have found there is good cause that providing noticing or receiving public comments on the final rule would be impracticable and unnecessary.

According to the agencies, the conforming amendments “do not involve the exercise of the agencies’ discretion,” therefore a “notice and comment process would neither provide new information to the public nor inform any agency decisionmaking regarding the aspects of the regulations defining ‘waters of the United States’ that are invalid as inconsistent with the [CWA] under Sackett.”

Immediate Publication & Effect
The August 2023 Rule will become immediately effective upon publication in the Federal Register. The agencies have found similar good cause under APA section 553(d)(3) to make the August 2023 Rule immediately effective because it will not impose any burdens on the regulated community. Instead, the agencies contend that the amendments merely conform the January 2023 Rule to Sacket by amending those provisions deemed invalid under the Supreme Court’s interpretation of the CWA.

The agencies reiterate that making the rule immediately effective will provide more clarity and certainty to the regulated community; whereas a delayed effective date would prolong confusion and potentially result in project delays for prospective permittees that seek a jurisdictional determination for their project’s proposed discharges. Finally, the immediate effect of the Conforming Rule will also provide clarity to States and Tribes that administer CWA permitting programs, as well as members of the general public who seek to understand which waters are subject to the CWA’s requirements.

Next Steps

The amended August 2023 Rule is expected to be published in the Federal Register by Friday, September 1, 2023. Once published, the rule will go into immediate effect and the Army Corps’ pause on issuing jurisdictional determinations (due to the pending Sackett decision) will be lifted.

Due to an existing injunction against the January 2023 Rule, the agencies will implement the August 2023 Rule in the 23 states where the January 2023 Rule is not enjoined. In the remaining 27 states where the January 2023 is enjoined, the agencies will continue interpreting WOTUS consistent with the pre-2015 regulatory regime and the Sackett framework until further notice.

Brian Plant, Of Counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].

U.S. SUPREME COURT LIMITS FEDERAL PERMITTING JURISDICTION UNDER THE CLEAN WATER ACT, HOLDING THAT ONLY WETLANDS WITH A SURFACE CONNECTION TO INTERSTATE NAVIGABLE WATERS CONSTITUTE “WATERS OF THE UNITED STATES.”

SUMMARY AND UPDATE

In a highly-anticipated decision published on May 25, 2023, the United Stated Supreme Court in Sackett v. Environmental Protection Agency (2023) 598 U.S. __, 143 S.Ct. 1322 (No. 21-454), resolved the long-standing debate over the definition and scope of “waters of the United States” under the Clean Water Act. The unanimous opinion authored by Justice Alito significantly narrows the jurisdictional reach of the EPA and Army Corps by adopting the Court’s earlier plurality opinion in Rapanos v. U.S. to hold that only those wetlands with geographical features that are “indistinguishable” from traditional navigable waters due to a continuous surface connection are subject to federal regulation under the Clean Water Act. The Court applied this new standard to conclude that the EPA lacked regulatory and permitting authority over wetlands located adjacent to land owned by petitioners Michael and Chantell Sackett because those wetlands were distinguishable from covered waters.

Factual & Procedural Background

In 2004, Petitioners Michael and Chantell Sackett (the Sacketts) began backfilling land on their property near Priest Lake, Idaho, across the street from a tributary that feeds a non-navigable creek. While the parcel does not share a “continuous surface connection” with the tributary, the land could, at times, be hydrologically connected to the tributary and, by extension, Priest Lake.

After an enforcement action brought by EPA and after nearly a decade of litigation, the District Court entered summary judgment in favor of the EPA, holding that the Sacketts’ land was subject to CWA protections. The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.

The Supreme Court’s Opinion

The U.S. Supreme Court granted certiorari to decide the proper test for determining whether the wetlands on the Sacketts’ property constituted “waters of the United States” under the CWA.

The Court’s Holding – Defining “Waters of the United States”

Against the backdrop of a much litigated CWA history regarding jurisdiction, and relying heavily on earlier Supreme Court decisions (i.e., Rapanos), the 9-0 majority in Sackett held that the CWA’s use of the term “waters” in “waters of the United States” refers only to “those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” As such, adjacent wetlands only constitute statutory “waters of the United States” if they are “indistinguishable” from those bodies of water due to a continuous surface connection.

The Court agreed with the plurality in Rapanos that wetlands subject to the CWA include those that are “indistinguishable” from bodies of water that traditionally constitute “waters of the United States.” This only occurs when wetlands have “a continuous surface connection” to bodies of WOTUS, such that there is “no clear demarcation between ‘waters’ and ‘wetlands.’” Accordingly, to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that: (1) “the adjacent body of water constitutes [WOTUS] (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and (2) “the wetland has a continuous surface connection with … a relatively permanent body of water connected to traditional interstate navigable waters,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

In articulating this bright-line rule, the Court declined to defer to the EPA’s 2023 “wetlands” rule, which provides that “adjacent wetlands are covered by the CWA if they possess a significant nexus to traditional navigable waters, [and] that wetlands are ‘adjacent’ when they are ‘neighboring’ to covered waters.” The Court, in part, relied heavily on the thought that the assertion of jurisdiction should be clear so that those regulated can determine if their actions trigger the need for federal permitting and whether proposed “fill” activities can be subject to federal criminal enforcement.  In so doing, the Court relied on dictionary definitions and reasoned that the EPA’s earlier regulatory interpretations were inconsistent with the text of the CWA because the Act contained no “exceedingly clear language” indicating Congress’ intent.

Despite the Court’s focus on the need for clear language, the opinion provides that “[the Court] also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”  Here the Court raises a question with respect to what amounts to a “continuous” surface connection during drought, for instance.  Indeed, how “dry” is “dry” and how long does a feature need to be “dry” before it is no longer a “temporary” interruption of flow.

Recent Updates

Both EPA and the Corps have gone on record in saying that they anticipate issuing a federal rule addressing the Court’s opinion in September 2023. In addition, various Corps Districts are modifying procedures in anticipation of this proposed rule and/or guidance. For instance, the Sacramento District has suspended processing Approved Jurisdictional Determinations (AJDs) and will verify only Preliminary Jurisdictional Determinations (PJDs).

Numerous NGOs, policy groups and agencies are attempting to determine the impact of the ruling on their programs. For instance, the National Association of Homebuilders (NAHB) has conducted talks with aquatic resource consultants and scientists in an effort to determine the likely effect of future regulation and permitting. That input generally recognizes that “one size” will likely “not fit all” given the wide variety of regional wetland hydrology. In particular, regions with “ephemeral” Mediterranean climates like California will be affected differently than those with consistently wetter climates.

Brian Plant, of counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions arising under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at [email protected].

The Future of Wetlands and Waters of the United States: U.S. Supreme Court Grants Review of Sackett v. EPA

On January 24, 2022, the United States Supreme Court granted review of Sackett v. U.S. EPA (No. 21-454) to consider whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands constitute “waters of the United States” under the federal Clean Water Act. (33 U.S.C. § 1362(7).) The Supreme Court’s second grant of certiorari marks a pivotal development in a long-running legal battle between the Sacketts—an Idaho couple seeking to build a home near Priest Lake—and the EPA, which has maintained that the Sacketts’ property contains wetlands subject to federal jurisdiction and permitting.

Factual Background

The Sacketts own a residential lot in Bonner County, Idaho, that lies just north of Priest Lake. To prepare for construction of a house, the Sacketts filled part of their lot with dirt and rock. Several months later, the Sacketts received a compliance order from the EPA stating that the lot contained wetlands that were adjacent to Priest Lake, which was a “navigable water” within the meaning of section 502(7) of the Clean Water Act (CWA) and constituted “waters of the United States” within the meaning of 40 C.F.R. § 232.2. The compliance order found that the Sacketts violated the CWA by impermissibly discharging pollutants into navigable waters. The order directed the Sacketts to remove the fill and restore the lot to its original condition, or be subject to civil penalties.

March 2012: Initial Lawsuit & Supreme Court Decision

The Sacketts sought, but were denied, an administrative hearing before the EPA. The Sacketts thus filed suit in the U.S. District Court of Idaho, contending that the compliance order violated the Administrative Procedure Act and the Sacketts’ due process rights. The petition alleged the EPA acted arbitrarily and capriciously by issuing the compliance order, and deprived the Sacketts of life, liberty, or property without due process of law in violation of the Fifth Amendment. The District Court dismissed the action due to lack of subject-matter jurisdiction. The Ninth Circuit affirmed, finding that the CWA precluded pre-enforcement judicial review of compliance orders, and that such preclusion does not violate the Fifth Amendments’ due process guarantee.

In 2012, the Supreme Court granted review of the Ninth Circuit’s decision to consider whether the EPA’s compliance order constituted a “final agency action” that could be subject to judicial review. The Supreme Court unanimously held in favor of the Sacketts, finding that the order had “all the hallmarks of APA finality.” In an opinion authored by the late Justice Scalia, the court held that the EPA’s order “determined” the “rights or obligations” of the Sacketts by imposing “legal consequences” that “flowed” from noncompliance with its terms. Because the EPA denied them an administrative hearing, the Sacketts possessed “no other adequate remedy in a court” so as to challenge the nature and scope of the order and administrative penalties therein.

August 2021: The Ninth Circuit’s Decision on Remand

On August 16, 2021, the Ninth Circuit issued its opinion on the merits of the Sacketts’ claims. The court of appeal held that the EPA reasonably determined that the Sacketts’ property contained wetlands. The court explained that Justice Kennedy’s interpretation and understanding of “significant nexus” in his concurring opinion in Rapanos v. United States (2006) 547 U.S. 715, provided the standard for determining when wetlands are regulated under the CWA. Applying that test, the panel held that the standard was satisfied because evidence in the record supported EPA’s conclusion that wetlands on the Sacketts’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a navigable water that is regulated under the CWA.

January 2022: The Supreme Court’s Second Grant of Certiorari – Implications

Since the Supreme Court’s decision in Rapanos, most lower courts have relied on Justice Kennedy’s “significant nexus” test as the governing standard. Nevertheless, the split of opinion in Rapanos, coupled with the lack of executive rulemaking to clarify the scope of the EPA’s CWA jurisdiction, has created confusion. As such, the Supreme Court’s second grant of certiorari could mark a momentous step in the ongoing debate about the appropriate “WOTUS” test.

The Supreme Court will consider “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” The Sacketts urge the Court to adopt the four-justice plurality’s test in Rapanos, which, unlike the “significant nexus” test, would allow regulation of wetlands only when they have a continuous surface water connection to regulated waters of the United States. In contrast, the EPA maintains that a rule divergent from the significant nexus test would deprive the agency of “authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity.’”

Though the Court will likely hear this case in October 2022, with a decision to follow in early 2023, it remains to be seen how the pending outcome will affect the EPA’s current implementation of, and revisions to, the “WOTUS” rule. Either way, the scope of federal jurisdiction in regulating and protecting the nation’s wetlands and navigable waters will be decided by our highest court yet again, hopefully yielding greater clarity on the issue rather than further muddying the waters.

– Bridget McDonald