In a January 30, 2023, letter to President Biden, 25 governors1 requested the new definition of “Waters of the United States” (“WOTUS”) proposed in rulemaking by the Environmental Protection Agency (“EPA”) be delayed until the U.S. Supreme Court issues its ruling in Sackett v. Environmental Protection Agency.
The Governors wrote that farmers, builders, small businesses, and “every other impacted sector of the American community” will be faced with unnecessary strain by multiple changes to the definition of WOTUS. “Another burdensome and overbroad regulation from the federal government could not come at a worse time for America,” the letter states, citing record inflation, gas prices, and “squandered” energy independence.
The letter stated that the definition of WOTUS, which has been in flux for at least 20 years between rulemaking and Supreme Court decisions, is only further complicated by a rulemaking presented on the eve of yet another Supreme Court ruling on the definition.
As previously reported by Jordan Ramis, the definition of WOTUS determines whether the Clean Water Act and implementing regulations apply to a particular body of water. The Clean Water Act prohibits discharge of pollutants from a point source into “waters of the United States,” without a permit. While certain waters are unquestionably WOTUS, such as waters used for interstate commerce, interstate waters, traditionally navigable waters, and the territorial seas, other water bodies such as intermittent streams, ditches, certain wetlands, and isolated bodies of water have been the ball in the WOTUS game of ping-pong for many years.
In 2015, the Obama administration’s Clean Water Rule attempted to define the “waters of the United States” extremely expansively, to include even minor isolated streams and wetlands, requiring only a “significant nexus” between those waters and larger “navigable waters.”
The Trump administration repealed the Obama-era rule with the Navigable Waters Protection Rule (“NWPR”), eliminating the significant nexus test, and limiting WOTUS to navigable waters, their tributaries, lakes, ponds, and impoundments of navigable waters and adjacent wetlands.
In 2021, the U.S. District Court of the District of Arizona vacated and remanded the NWPR, finding that the definition of WOTUS was fundamentally and substantively flawed requiring revision or replacement of the definition in the NWPR. Thereafter, the pre-2015 definition of WOTUS was implemented by the EPA until a new rule could be drafted.
On December 30, 2022, the EPA and Army Corps of Engineers announced the final “Revised Definition of ‘Waters of the United States’” rule. The EPA stated that the new rule provides a “durable definition of ‘waters of the United States’ that is grounded in the authority provided by Congress in the Clean Water Act, the best available science, and extensive implementation experience stewarding the nation’s waters.” This newest iteration of the rule covers traditional navigable waters, territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. Unless implementation is delayed as requested by the 25 governors who authored this letter, the rule will become effective on March 20, 2023.
Complicating matters is Sackett v. Environmental Protection Agency, a case argued before the Supreme Court in October 2022. A decision in that case is expected by June 2023. In that case, the Supreme Court is expected to articulate the proper test for determining if wetlands are WOTUS under the Clean Water Act. The outcome of Sackett could have a significant impact on the rulemaking just finalized by EPA. If the Supreme Court’s ruling is inconsistent with EPA’s new definition of WOTUS, the ruling will trigger yet another change in the definition, which is why the governors of these 25 states requested that the Biden administration delay the implementation of the new WOTUS rule until Sackett is decided.
With respect to how this affects our clients, waters that are not “WOTUS” can still be regulated by state law, because state laws can be more stringent than federal laws. In Washington, water quality standards prescribed by state law are applied to non-WOTUS wetlands. Oregon has broad state authority to regulate and protect surface waters, and stream and wetland protection are carried out through permitting programs such as Oregon’s Removal-Fill Law.
Jordan Ramis will provide an update and implications once the Supreme Court issues its Sackett decision.
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[1] The governors of Idaho, Alabama, Alaska, Arkansas, Florida, Georgia, Indiana, Iowa, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.
Additional references:
Bayer, Maureen, “Defining the waters of the United States is a twisting tributary of change.” Jordan Ramis PC, August 29, 2022, https://jordanramis.com/blog/defining-the-waters-of-the-united-states-is-a-twisting-tributary-of-change/.
“Governor Gianforte, 24 Other Governors Oppose President Biden’s WOTUS Rule,” Montana.gov, January 30, 2023, https://governor.mt.gov/_docs/Joint-Letter-to-President-Biden-on-the-Waters-of-the-United-States-Rule.pdf.
Pasqua Yaqui Tribe v. US EPA, No. CV-20-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021).
“Revised Definition of ‘Waters of the United States,’ ” Federal Register, January 18, 2023, https://www.federalregister.gov/documents/2023/01/18/2022-28595/revised-definition-of-waters-of-the-united-states.
Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1081 (9th Cir. 2021), cert. granted in part sub nom. Sackett v. Env’t Prot. Agency, 211 L. Ed. 2d 604, 142 S. Ct. 896 (2022).
“Waters of the United States, Environmental Protection Agency,” (updated January 18, 2023), https://www.epa.gov/wotus.
Tags: Environmental and Natural Resources, Water
