On December 7, 2021, the most recent proposed revision to the Clean Water Act’s term, “Waters of the United States” was published in the Federal Register. (See 86 FR 69372.) Comments on this proposal must be submitted by February 7, 2022. This term controls the scope of federal regulatory powers in such programs as the development of water quality standards, impaired waters, total maximum daily loads, oil spill prevention, preparedness and response plans, state and tribal water quality certification programs, the National Pollutant Discharge Elimination System (NPDES) permit program, and the Corps of Engineers’ dredge and fill program. The Environmental Protection Agency (EPA) and the Corps of Engineers have jointly drafted this comprehensive proposed rule, which also responds to President Biden’s Executive Order 13990, issued in January 2021.
The agencies noted that they have repeatedly defined and re-defined “Waters of the United States” since the Clean Water Act was enacted in 1972. This level of sustained commitment is unique to this program, perhaps reflecting the importance of the programs that are implemented through the Clean Water Act. The most recent rulemaking efforts took place in 2015, 2017, 2020 and now 2022, and the Supreme Court has issued several landmark rulings in response to these efforts. See City of Milwaukee v. Illinois, 451 US 304 (1981), United States v. Riverside Bayview, 474 US 121 (1985), SWANCC v. United States, 531 US 159 (2001), Rapanos v. United States, 547 US 715 (2006), National Association of Manufacturers v. Department of Defense, 138 S Ct 617 (2018), and County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S, Ct 1462 (2020). The rules promulgated in 2015 and entitled, “Clean Water Act: Definition of Waters of the United States” expanded the scope of federal regulatory jurisdiction, but the 2020 rule, entitled the “Navigable Waters Protection Rule,” contracted that scope. Now, the agencies have proposed the “Revised Definition of ‘Waters of the United States,’” which will rescind the 2020 rule and inevitably restore something of the scope of the 2015 rule by returning to the familiar “1986 rules” that were issued by the Corps of Engineers in 1986 and EPA in 1988, as modified by the recent Supreme Court decisions mentioned above. Both the 2015 and 2020 rules were mired in litigation and the Corps and EPA view the resort to the 1986 rules as a fresh start for the Clean Water Act. In short, the topsy-turvy history of regulation under the Clean Water Act continues.
The 2020 Rule and the Proposed Revised Definition
The 2020 rule took pains in distinguishing between “jurisdictional waters” that are subject to extensive federal regulation, and “non-jurisdictional waters” which are intended to be regulated by the states and Tribal governments. The “Waters of the United States” consist of: (a) the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; (b) tributaries; (c) lakes and ponds, and impoundments of jurisdictional waters; and (d) adjacent wetlands. There is an extensive list of “non-jurisdictional waters”: (a) waters or water features that are not identified above; (b) groundwater, including groundwater drained through subsurface systems—a category which may have been nullified by the Supreme Court’s ruling in the County of Maui case; (c) ephemeral features such as ephemeral streams, swales, gullies, rills, and pools; (d) diffuse stormwater run-off, and directional sheet flow over upland; (e) ditches, as defined here; (f) prior converted cropland; (g) artificially irrigated areas; (h) artificial lakes and ponds as defined here; (i) water-filled depressions as defined here; (j) stormwater control features to convey, treat, infiltrate, or store stormwater run-off ; (k) groundwater recharge, water reuse and stormwater recycling structures as defined and conditioned here; and (m) waste treatment systems. The specific definitions promulgated as part of this rule include “adjacent wetlands”; “ditch”; “ephemeral”; “high tide line”; intermittent”; “lakes and ponds and impoundments of jurisdictional waters”; “ordinary highwater mark”; “perennial”; “prior converted cropland”; “snowpack”; “tidal waters”; “tributary”; “typical year”; “upland”; “waste treatment system”; and “wetlands.”
The Latest Proposed Rule
The December 2021 Proposed Rule is largely a recension of the 1986 rule, albeit importantly modified to provide that certain waters which are connected to jurisdictional waters by means of a relatively permanent, or continuously flowing surface, or either alone or in combination with similarly situated waters in the region, “significantly affect” the chemical, physical or biological integrity of listed jurisdictional waters. Specifically, the proposed rule retains the 2020 rule’s definition of “high tide line,” “ordinary high-water mark,” and “tidal waters.” Briefly, the proposed, albeit still complex, new rule defines “Waters of the United States as: (1) All 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; (2) all interstate waters including interstate wetlands; (3) all other waters such as intrastate lakes, rivers, streams (including intermittent streams) mudflats, sandflats, sandflats, wetlands, sloughs, prairies potholes, wet meadows, playa lakes, or natural ponds: (1) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a) (1), (a) (2), (a)(5)(i) or (a)(6) of this section, or (ii) 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),(2), or (6) of this section; (4) All impoundments of waters otherwise identified under paragraph (a)(3) of this section; (5) Tributaries of waters identified in paragraph (a)(1), (2), (4), or (6) of this section that are (i) relatively permanent, standing or continuously flowing bodies of water; or (ii) That either alone or on combination with similarly situated waters in the region, significantly affect the chemical, physical or biological integrity of waters identified in paragraph (a)(1), (2), or (6) of this section; (6) The territorial seas; (7) Wetlands adjacent to the following waters (other than waters that are themselves wetlands); (i) Waters identified in paragraph (a)(1),(2), or (6) of this section; or (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(4) or (a)(5)(i) of this section and with a continuous surface connection to such waters; or (iii) Waters identified in paragraph (a)(4) of (a)(5)(ii) 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), (2), or (6) of this section; (8) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act are not waters of the United States, and (9) Waters of the United States do not include prior converted cropland. (The final authority of this area’s status regarding Clean Water Act Jurisdiction remains with EPA.)
Importantly, the proposed new rule restores the 2015 rule’s extensive use of the “significantly nexus” standard to determine federal jurisdictional waters and adds the Rapanos plurality’s separate standard which covers “relatively permanent, standing or continuously flowing bodies of water having a continuous surface connection” to “Waters of the United States” as would be defined by the proposed rule.
How the Administrative Procedure Act Applies
By initiating a comprehensive proposed rulemaking so soon after the 2020 regulatory revisions, the agencies acknowledge that they must justify this policy change to comport with several Supreme Court Administrative Procedure Act (APA) rulings, especially the case of Federal Communications Commission v. Fox Television Stations, Inc., 556 US 502 (2009). In that case, the Commission enforced its newly revised “indecency policy” for broadcast television. The U.S. Court of Appeals for the Second Circuit reversed the Commission’s fine and forfeiture because the court believed that the Commission failed to justify its change in policy as required by the APA. However, the Supreme Court reversed the Second Circuit, holding that the APA required only a reasoned analysis and explanation for the change in policy. The Court observed that a federal agency cannot simply disregard a rule that is on the books, but the agency can show that the new action is permissible under the statute (here the Communications Act of 1934) and that are good reasons to change direction and the agency believes that the change is a better public policy to follow. Here, the agencies have taken note of the fact that an Arizona federal district vacated the 2020 rules in their entirety as being in consistent with the law and the administrative record (that ruling is being appealed), leaving a regulatory “gap” to be promptly filled by federal regulation. The 1986 WOTUS definition was revived, and the agencies contend that this rule can be supplemented by the rulings of the Court in the Rapanos decision. In addition, the agencies argue that the 2020 rule did not adhere to the fundamental objectives of the Clean Water Act as set forth at Section 101 (a) of the Act. Also, the 2020 rule failed to “follow the science” and even some of the administrative provisions of the 2020 rule were very difficult to implement in the field.
Parties desiring to comment on the new proposed rulemaking may find it useful to address these arguments, and the expanded federal jurisdiction over the nation’s waters that may result. They should also bear in mind that the Supreme Court has agreed to decide a new Clean Water Act “Waters of the United States” case: Sackett, et. al. v. Environmental Protection Agency, et. al. The petitioners are appealing a Ninth Circuit ruling that their property is subject to federal jurisdiction because of the “significant nexus” test. The Court has defined the issue thusly: Whether the Ninth Circuit set forth the proper test for determining whether wetlands are “Waters of the United States” under the Clean Water Act.