Overview:
On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and U.S. Department of Army (a.k.a., Army Corp of Engineers), collectively referred to as “the Agencies” herein, announced a final rule amending the 2023 definition of Waters of the United States (WOTUS). Shortly thereafter, on September 8, 2023, the Agencies finalized and posted the rule to the federal register. This new rule affects those regulated by various programs under the Clean Water Act (CWA). This change was in response to, and conforms with, the Supreme Court decision Sackett v EPA from earlier this year. While the 2023 rule defining WOTUS was not directly before the Supreme Court, certain aspects of the 2023 rule were made invalid by the Court’s decision. The Agencies have largely adhered to their plan in this update, although there remains some uncertainty regarding how it will be interpreted and enforced.
Recent Changes:
In summary, there are two revisions and two clarifications that stand out in this update. The first revision is the removal of the adjacency test. Previously, wetlands adjacent to a WOTUS could be considered WOTUS themselves. With the new rule, the water body in question must have a continuous surface connection to a WOTUS to be considered a WOTUS itself. In a similar fashion, the second major revision is the removal of the significant nexus test, which was introduced with the Rapanos Supreme Court case for wetlands, tributaries, and other various waters that are not traditional navigable waters, territorial seas, interstate waters, and impoundments created in or from WOTUS. The significant nexus standard is no longer a valid test to determine if a tributary or other water body is a WOTUS. In addition to these major changes, the new rule introduced clarification for “additional” water bodies. The new rule clarifies that interstate wetlands are not considered WOTUS. Additionally, the “additional waters” category has been defined to clarify characteristic features of a WOTUS. These changes aim to bring clarity and ensure conformity with the Sackett decision. Nevertheless, certain aspects, such as the definition of “relatively permanent” and its practical application, still lack clarity.
In Sackett v. EPA, the Supreme Court found aspects of the previous rule unlawful, and invalidated certain provisions of the previous 2023 WOTUS Rule. The Agencies have determined that there is good cause to issue this final rule without prior notice and public comment because the changes are necessary to align the regulations with the Supreme Court’s decision. The Agencies argue that public notice and comment are unnecessary for this rule because it involves the correction of specific provisions and does not require the exercise of agency discretion. They also emphasize that the changes are needed to provide clarity and certainty to the regulated community following the Sackett decision. Many states and industry groups have called for swift action to avoid delays in permitting processes and to reduce regulatory uncertainty.
In terms of severability, the Agencies clarify that if any part of this rule or the 2023 Rule, as amended by this rule, is invalidated, the remaining portions will remain in effect. They argue that the rule’s provisions are capable of operating independently, and partial invalidation will not render the entire rule or the amended 2023 WOTUS rule invalid.
Current Rule:
There are still two key standards in determining jurisdiction of WOTUS to tributaries, adjacent wetlands, and additional waters, as defined by EPA. If the waters meet both standards, then they are under the jurisdiction of WOTUS:
- Relatively Permanent standard: The waterbodies must be relatively permanent, standing, or continuously flowing waters connected to traditional navigable waters, territorial seas, or interstate waters, or waters with a continuous surface connection to relatively permanent waters or to traditional navigable waters, territorial seas, or interstate waters.
- Continuous Surface Connection standard: The waterbodies must be connected, aboveground, to traditional navigable waters or other known WOTUS.
Additionally, there are still eight types of water bodies that are specifically excluded from the WOTUS definition:
- Prior converted cropland utilizing USDA’s definition;
- Waste treatment systems;
- Ditches, excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water;
- Artificially irrigated areas;
- Artificial lakes or ponds used exclusively purposes such as stock watering, irrigation, settling basins, or rice growing;
- Artificial reflecting pools or swimming pools;
- Waterfilled depressions until the construction operation is abandoned and the resulting body of water meets the definition of WOTUS; and
- Swales and erosional features characterized by low volume, infrequent, or short duration flow.
Lastly, there are some waterbodies that remain specifically included in the new definition of WOTUS, taking into account regional differences in waters. The types of WOTUS covered waters are: traditional navigable waters, territorial seas, and interstate waters, as well as any additional waters meeting the relatively permanent and continuous surface connection standards, including but not limited to impoundments, tributaries, and wetlands.
Why It Matters:
The updates to the WOTUS definition may directly impact the regulated community’s programs that involve bodies of water subject to the CWA including:
- NPDES permitting
- Industrial and construction stormwater programs
- Spill Prevention, Control, and Countermeasure (SPCC), including Facility Response Plans (FRP)
- Oil spill planning and notifications
- Permits for dredges or filled materials
As a result of this update, owners and operators of facilities are once again prompted to review their CWA programs to ensure compliance with federal and state standards and regulations. Be aware that your state may have its own definition of “waters of the state” (or similar definition) that governs water protections under certain state programs, adding to the confusion. A “simple” question that each facility should be able to answer with certainty is “Where is the nearest regulated waterbody to my facility?”. Unfortunately, this question remains challenging for many facilities even with this new rulemaking.
For more information or for assistance, please contact Trinity Consultants at 800.229.6655.
