EPA Revises Definition of “Waters of the United States”

January 2023

Happy New Year from Hartman King PC! As we look forward to continuing to provide our clients with specialized environmental law expertise in the New Year, we must note a critical regulatory change in last year’s waning hours. The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule defining “waters of the United States” on December 30, 2022, which will become effective on March 20, 2023. The regulation is critical because it attempts to define which bodies of water fall under U.S. federal jurisdiction for governing water pollution. The rule is the latest in a string of agency regulatory guidance that has shifted philosophically with each successive presidential administration since the early 2000s.

Waters of the United States

Congress initially passed the Federal Water Pollution Control Act in 1948 but significantly reorganized and expanded the law as the Clean Water Act (CWA) in 1972. Section 301(a) prohibits the discharge of any pollutants into “navigable waters” except in compliance with other portions of the Act. The Act defines navigable waters in section 502(7) as “the waters of the United States, including the territorial seas,” but does not provide further clarity. Instead, the Act, in Sections 402 and 404, defers to the EPA and U.S. Army Corps of Engineers (Corps) to further define “waters of the United States” in their respective regulations governing pollutants and dredged or fill material.

For five Presidential administrations spanning more than three decades, the Corps and EPA expanded the interpretation of their jurisdiction until it covered “270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States…(asserting) jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow…(such as) storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.” Rapanos v. United States, 547 U.S. 715, 722 (2006). In Rapanos v. United States (Rapanos), a plurality of the United States Supreme Court agreed federal jurisdiction over isolated wetlands was overbroad. Still, it split on the interpretation of “navigable waters.”

The Clean Water Rule

Following the Supreme Court’s rulings in Rapanos and similar cases, the EPA and Corps under the Obama Administration published a new final rule in 2015 to clarify waters with ambiguous jurisdictional status. The 2015 Clean Water Rule expanded agency jurisdiction to include tributaries with “physical indicators” of flowing water, bodies of water within 1,500 feet of traditional navigable waters, and regional features like prairie potholes and vernal pools. The 2015 Clean Water Rule placed jurisdiction into three basic categories: 1) Waters that were always jurisdictional, 2) Waters excluded from jurisdiction, and 3) Waters subject to a case-specific analysis to determine whether jurisdiction applied. The controversial rule quickly ended up entangled in federal courts, with roughly half of the states in the U.S. successfully seeking injunctions to block the rule’s enforcement.

The Navigable Waters Protection Rule (NWPR)

The Trump administration then rolled back the 2015 Clean Water Rule and replaced it with the NWPR in 2019 and 2020. The NWPR reduced the EPA and Corps’ jurisdiction in traditionally non-navigable waterways. However, the U.S. District Court for the District of Arizona subsequently vacated the NWPR in 2021 in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, finding it had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’” Pascua at 9. The court did not, however, address which water rule applied—and in which states—given its holding.

The Current WOTUS Rule

The Biden administration abandoned the NWPR in late 2022 and reverted to the pre-2015 definition with some additional clarifications. However, uncertainty lingers over federal jurisdiction concerning water pollution. First, as with the NWPR and Clean Water Rule, stakeholders will likely file challenges in federal district courts across the country as they seek to protect their interests. Second, the Biden administration issued the current rule while a new challenge is pending before the U.S. Supreme Court that could outline new contours for Clean Water Act jurisdiction. The Supreme Court heard oral arguments in Sackett v. Environmental Protection Agency in October 2022 but will not announce its decision until sometime in early 2023.

How Hartman King PC Can Help

Federal water regulation is no trivial matter. Land developers can spend years and hundreds of thousands of dollars seeking appropriate permits. The Clean Water Act also imposes criminal liability and steep civil fines on a broad range of industrial and commercial activity. We actively represent numerous clients in litigation, permitting, compliance, enforcement defense, and contaminated property transactions. Please get in touch with the Top Environmental Lawyers at Hartman King PC if you need advice concerning litigation or regulatory compliance.

For more information on the 2022 Final WOTUS Rule, click here.

For more information on our environmental law services, please contact us at: [email protected].

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