On December 20, 2022, the Environmental Protection Agency and the US Army Corps of Engineers released its Final Rule redefining “waters of the United States” (“WOTUS”) under the Clean Water Act (“Biden Rule”).  [Read Biden Rule here.]  The Biden Rule is set to go into effect on March 20, 2023.  There have, however, been lawsuits challenging the Final Rule that could impact this effective date.  [Read Complaint here and Complaint here.]

Photo by Tungsten Rising on Unsplash

Background

For those of you keeping score, this marks the third attempt by the EPA to redefine WOTUS since 2015.  The Obama administration promulgated a final rule in 2015, which was then repealed and replaced by the Trump administration’s final rule in 2020, which was repealed by the Biden administration in 2021.  For more history than anyone likely wants, click here to read a law review article I co-authored with Jesse Richardson and Gatlin Squires.

Keep in mind that the definition of WOTUS is really a question regarding the scope of the Clean Water Act (“CWA”).  Congress, acting under the Commerce Clause, passed the CWA in 1972.  The CWA gave federal jurisdiction over “navigable waters,” a term that was defined as being “waters of the United States” to the EPA and the US Army Corps of Engineers.  The CWA did not, however, define “waters of the United States.”  This has resulted in decades of rulemaking by the agencies and litigation over the scope of this phrase.

The landmark Supreme Court case came in 2006 in Rapanos v. U.S.  This case resulted in the now-famous 4-1-4 plurality decision that has driven WOTUS rulemaking ever sense.  The plurality opinion, written by Justice Scalia,  held that only “relatively permanent, standing, or continuously flowing” bodies of water as considered WOTUS under the CWA.  Further, for wetlands, only those with a “continuous surface connection” to a relatively permanent body of water would satisfy the CWA meaning of WOTUS.  Justice Kennedy authored an opinion concurring in part and dissenting in part.  He agreed with the plurality’s ruling on whether the wetland was a WOTUS in this case but believed a wholly different test was proper to analyze the question.  For Justice Kennedy, the question was whether a wetland shared a “significant nexus” with a water that was already recognized as a WOTUS.  A “significant nexus” would exist if a wetland “significantly affected the chemical, physical, and biological integrity” with a recognized WOTUS.  While the Justices certainly sought clarity in the CWA, the last several decades have proven that the meaning of WOTUS is far from certain.  The lack of clarity has generated multiple rules, varying guidance, and legal interpretations adding to widespread confusion.

The impacts of the scope of the WOTUS definition is significant for landowners, as lands meeting the definition of a WOTUS require a landowner to obtain a federal permit before undertaking certain actions such as dredge and fill (i.e. moving dirt) or discharging a point source pollutant. [For more background, click here.]

Biden WOTUS Rule

The Biden Rule essentially combines the Rapanos approaches of Justice Scalia and Justice Kennedy by adopting both the relatively permanent standard set forth by Justice Scalia and the significant nexus standard offered by Justice Kennedy.  Additionally, it adds several new definitions as well.

Jurisdictional Waters 

The Biden Rule sets forth five categories of jurisdictional waters:

(1) Waters which are currently used, previously used, or susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; territorial seas; or interstate waters, including interstate wetlands (“TNW”);

(2) Impoundments of waters defined as WOTUS under this definition other than impoundments of intrastate lakes and ponds, streams, or wetlands identified in category 5 below (“Impoundments”);

(3) Tributaries of TNWs or Impoundments that are: (a) relatively permanent, standing or  continuously flowing bodies of water, or (b) that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of TNWs (“Tributaries”);

(4) Wetlands adjacent to: (a) TNWs; (b) relatively permanent, standing or  continuously flowing bodies of water identified as Impoundments or relatively permanent tributaries and with a significant surface connection to those waters; or (c) impoundments or tributaries when the wetlands either alone or in combination with similarly situated waters in the region significantly affect the chemical, physical, or biological integrity of TNWs (“Wetlands”);

(5) Intrastate lakes and ponds, streams, or wetlands not otherwise identified in categories 1-4 that: (a) are relatively permanent, standing, or continuously flowing bodies of water with a continuous surface connection to TNWs or tributaries that are relatively permanent, standing or continuously flowing bodies of water; or (b) either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of TNWs (“Intrastate lakes and ponds”).

Definitions

There are several key definitions listed within the Biden Rule that will help to interpret the jurisdictional water provisions.

(1) Wetlands:  Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.  Wetlands generally include swamps, marshes, bogs, and similar areas.

(2) Adjacent:  Bordering, contiguous, or neighboring.  Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”

(3) Significantly affect:  A material influence on the chemical, physical, or biological integrity of TNWs. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of TNWs, the following factors will be assessed:  (a) contribution of flow; (b) trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants); (c) retention and attenuation of floodwaters and runoff; (d) modulation of temperature in TNWs; (e) provision of habitat and food resources for aquatic species in TNWs.  Additionally, the following factors are to be considered:  (a) distance from a TNW; (b) hydrologic factors such as the duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow; (c) size, density, or number of waters that have been determined to be similarly situated; (d) landscape position and geomorphology; and (3) climatological variables such as temperature, rainfall, and snowpack.

Exclusions

The Biden Rule lists several categories that are not WOTUS, even if they otherwise meet the definitions of Jurisdictional Waters.  These include:

(1) Waste treatment systems, including ponds or lagoons, designed to meet the requirements of the CWA;

(2) Prior converted cropland designated by the Secretary of Agriculture (Determination made by EPA; exclusion ceases upon change of use);

(3) Ditches excavated wholly in and draining only dry land that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water which are used for such purposes as stock watering irrigation, settling basins, or rice growing;

(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of WOTUS;

(8) Swales and erosional features (e.g. gullies, small washes) characterized by low volume, infrequent, or short duration flow.

Observations

Structurally, the Biden Rule is set up similar to the Obama and Trump Rules, with discrete sections outlining jurisdictional waters, exclusions, and definitions.

The first two categories of jurisdictional water under the Biden Rule have essentially been the same under each administration’s rulemaking attempt.  From there, however, differences arise.

The distinguishing feature of the Biden Rule is the inclusion of both the Scalia “relatively permanent” test and the Kennedy-like “significantly affects” test.  Waters meeting either definition are jurisdictional under the Biden Rule, making it broader in this way than both the Trump and Obama Rule.  Opponents of the Biden Rule will almost certainly raise the unwieldy nature of the “significantly affects” definition.  From a practical perspective, the definition seems very broad and potentially difficult for landowners to apply or analyze when seeking to determine if they may have a WOTUS on their property.

With regard to tributaries (category 3), the Biden definition does not define what constitutes a “tributary.”  This is in contrast to the Obama Rule, which defined the term as anything that contributed flow, either directly or indirectly, to a traditional navigable water that has a bed, bank ,and ordinary high water mark.  From a clarity perspective, the lack of a definition of the term “tributary” may prove problematic under the Biden Rule.

Looking at wetlands (category 4), all three Rules–Obama, Trump, and Biden–have defined “wetlands” the same.  The differences arise in how they define those wetlands that are “adjacent” and, therefore, jurisdictional.  Under the Biden and Obama Rules, the definition of “adjacent” was “bordering, contiguous, or neighboring,” but unlike the Obama Rule, those three terms are not further defined in the Biden Rule.  The only additional definition offered is that wetlands separated from other WOTUS by man-made barriers are still considered “adjacent.”  It seems that this concept of what is and is not adjacent may remain ripe for legal challenge under this new definition.

Next, the intrastate lakes and ponds (category 5) is a category seemingly unique to the Biden Rule.  It encompasses lakes, ponds, streams, or wetlands not otherwise considered a WOTUS if they are relatively permanent with a continuous surface connection to a WOTUS or significantly affect TNWs.

Finally, there are also differences in the Biden Rule’s exclusions when compared to both the Obama and Trump Rules.  Chief among these distinctions is that the Biden Rule does not list “groundwater” as an excluded water, while both the Obama and Trump Rules did so. On page 3105 of the Biden Rule, the commentary notes that groundwater is excluded as it is not considered surface water and, therefore “does not fall within the possible scope of ‘navigable waters.'”

Additionally, there are three additional categories that were listed as exclusions per the Obama Rule that are not excluded under the Biden Rule: puddles, stormwater control features constructed to convey, treat, or store stormwater that are created in dry land, and wastewater recycling structures constructed in dry land, detention and retention basins built for wastewater recycling, groundwater recharge basins, percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling.

Conclusion

Despite being over 50 years into the Clean Water Act, the meaning of WOTUS remains uncertain and difficult to apply.  With legal challenges already pending to the Biden Rule, and the Sackett case currently pending before the United States Supreme Court, what will happen next in the attempt to clarify the meaning of WOTUS remains unclear.  On a practical level, the remaining uncertainty, legal challenges, and changing definitions are likely a frustrating conclusion for landowners for whom determining whether jurisdictional waters exist on their property is a very real concern.