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On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army published a new final rule to re-define “waters of the United States” (“WOTUS”) under the Federal Clean Water Act (“CWA”). Although the rule is set to take effect March 20, 2023, the looming U.S. Supreme Court decision in Michael Sackett, et ux v. EPA, et al., Docket No. 21-454(2022) could establish additional legal precedent as to what constitutes WOTUS and could enable further legal challenges to the rule. If the rule goes into effect, it would broaden the types of water bodies subject to CWA regulation, while providing some clarity with regard to some newly excluded water features.

Background

The CWA applies to “navigable waters,” which phrase is unhelpfully defined as “waters of the United States.” What constitutes WOTUS significantly impacts when CWA permits are needed for pollution discharges and wetland filling. The definition of WOTUS, however, has been in flux for twenty years (since Rapanos v. United States, 547 U.S. 715 (2006), in which the Supreme Court failed to rule by a clear majority on certain WOTUS boundaries). Justices in Rapanos articulated two disparate standards to determine WOTUS boundaries: the “significant nexus” standard advocated by Justice Anthony Kennedy and the “relatively permanent” standard expressed by Justice Antonin Scalia. The “significant nexus” standard designates waters or wetlands adjacent to traditional navigable waters as WOTUS if they have a significant nexus or impact on the traditional navigable waters protected under the CWA. The “relatively permanent” standard limits the definition of WOTUS to those waters connected to the traditional navigable waters and are relatively permanent or continuously flowing bodies of water.

The new rule is the third attempt to define WOTUS by regulation in the last ten years, following the Clean Water Rule (80 Fed. Reg. 37053) promulgated by the Obama administration (based upon the “significant nexus” standard), which was tightened substantially by the Navigable Waters Protection Rule promulgated by the Trump administration (more closely following the “relatively permanent” standard). The Navigable Waters Protection Rule was invalidated by a federal court in 2021, leading the Biden administration to promulgate this new rule. Publishing a final rule now is likely in anticipation of Sackett, the outcome of which may limit or disregard the “significant nexus” standard as the main standard used to determine what waters fall under federal jurisdiction.

Proposed Changes Under New Rule

The new rule incorporates both Justice Kennedy’s “significant nexus” standard, which will be utilized in certain circumstances, and Justice Scalia’s “relatively permanent” standard.

Under paragraph (a) of the new definition, waters of the United States are defined as follows:

  • Traditional navigable waters, the territorial seas, and interstate waters;
  • Impoundments of waters of the United States;
  • Tributaries to traditional navigable waters, the territorial seas, interstate waters, or waters under paragraph (a)(2) when the tributaries are either “relatively permanent” or “significantly affect” the waters in (a)(1) (“jurisdictional tributaries”);
  • Wetlands i) adjacent to paragraph (a)(1) waters, ii) adjacent to and with a continuous surface connection to “relatively permanent” paragraph (a)(2) impoundments or to “relatively permanent jurisdictional tributaries, and iii) adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands “significantly affect” waters in (a)(1) (“jurisdictional adjacent wetlands”); and
  • Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that are either “relatively permanent” or “significantly affect” waters in (a)(1) (“(a)(5) waters”).

To be “relatively permanent,” the water must be relatively permanent, standing, or continuously flowing and be connected via surface water to adjacent waters. To “significantly affect” a water, either alone or in combination with similarly situated waters, a water must have a material influence on the chemical, physical, or biological integrity of a paragraph (a)(1) water. The rule lists numerous factors and functions that need to be assessed to determine if a water “significantly affects” another water.

The new definition provides additional clarity for waters that are specifically excluded. These excluded waters include some of the more controversial water features that have been inconsistently determined as jurisdictional in the past:

  • Ditches draining dry land that do not carry a permanent flow of water;
  • Irrigated lands that would revert to dry land if not irrigated;
  • Artificial lakes or ponds created by excavating or diking dry land;
  • Waterfilled depressions created in dry land incidental to construction activity and active sand and gravel mining; and
  • Swales and erosional features with low volume, infrequent or short duration flow.

The Future of WOTUS

The pending Sackett decision, expected in 2023, may have a significant impact on the implementation of this rule. In addition, court challenges to the new rule have already been filed, including by the Attorney General of Texas and various industry groups. If the new rule is not stayed or invalidated by future court decisions, it will likely increase federal protections for waters, requiring permits for more projects that result in the discharge of pollutants into bodies of water or that fill in water or wetlands.

Fundamentally, the law surrounding which waters and wetlands constitute WOTUS will remain nebulous until further notice.

For more information on the potential impacts of the new WOTUS rule, please contact Husch Blackwell LLP’s WOTUS Team: Amy Wachs, Miguel Suazo, Jon Micah Goeller, Karin Jacoby, Daniel Fanning and Justin Cias.

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Photo of Miguel Suazo Miguel Suazo

Miguel integrates energy law, public policy, and regulatory compliance to solve complex legal and business challenges for sophisticated energy and natural resources clients. Miguel’s experience has placed him at the nexus of business and energy, land-use, and natural resources law. He represents a

Miguel integrates energy law, public policy, and regulatory compliance to solve complex legal and business challenges for sophisticated energy and natural resources clients. Miguel’s experience has placed him at the nexus of business and energy, land-use, and natural resources law. He represents a variety of clients involved in the development of renewable energy projects, providing regulatory counsel, and big picture thinking that helps get projects across the finish line. Parallel to his renewable energy practice, Miguel has counseled public officials and private companies in connection with cryptocurrency and energy use, including how mining operations can utilize flared natural gas produced by shale fracking to power bitcoin mining facilities.

Photo of Jon Micah Goeller Jon Micah Goeller

Jon Micah brings together in-house experience with a multinational power generation development and operations company with his background as local regional counsel for the Environmental Protection Agency to guide clients with utility-scale energy projects through a diverse set of permitting, compliance, product safety…

Jon Micah brings together in-house experience with a multinational power generation development and operations company with his background as local regional counsel for the Environmental Protection Agency to guide clients with utility-scale energy projects through a diverse set of permitting, compliance, product safety, remediation, liability management, litigation, and transactional challenges.

Photo of Karin Jacoby Karin Jacoby

With a unique combination of engineering acumen and legal savvy, Karin advances the interests of communities, companies, owners and operators that confront flood, water supply and stormwater management challenges.

She is effective at building consensus among stakeholders with diverse interests and interacting effectively

With a unique combination of engineering acumen and legal savvy, Karin advances the interests of communities, companies, owners and operators that confront flood, water supply and stormwater management challenges.

She is effective at building consensus among stakeholders with diverse interests and interacting effectively with national policy-makers. When advising on water resource matters, Karin offers an integrated approach that coordinates across geographic and agency boundaries, evaluating opportunities and potential effects from a system perspective.

Photo of Daniel Fanning Daniel Fanning

After two years assisting and regulating various industries, Daniel applies his prior experience as a wastewater pretreatment coordinator to assisting clients with environmental issues. Daniel enjoys working with various entities to help them understand how to comply with environmental regulations and statutes. In

After two years assisting and regulating various industries, Daniel applies his prior experience as a wastewater pretreatment coordinator to assisting clients with environmental issues. Daniel enjoys working with various entities to help them understand how to comply with environmental regulations and statutes. In addition, he represents clients in court or in front of various agencies when necessary. In particular, Daniel has experience with permitting, reporting, inspecting and working with the Environmental Protection Agency (EPA).

Photo of Justin Cias Justin Cias

Justin advocates for clients in complex commercial litigation matters.

Justin’s interest in law was ignited during his undergraduate years through an internship with a criminal defense attorney. After he was invited to witness a client’s trial, Justin was hooked: watching the case play

Justin advocates for clients in complex commercial litigation matters.

Justin’s interest in law was ignited during his undergraduate years through an internship with a criminal defense attorney. After he was invited to witness a client’s trial, Justin was hooked: watching the case play out in court fascinated him, and he loved seeing the impact of the not guilty verdict on the client. He knew immediately that this was the meaningful career he’d been searching for.

As an economics student, Justin had an interest in business alongside law, so he set his sights on commercial litigation as a way to combine both passions. In addition to the solid foundation it gave him in business matters, Justin’s economics background also made him a highly strategic thinker, which he now uses in litigation in strategizing for the best possible outcome for the client.

Justin represents clients in a variety of commercial matters and has a special interest in environmental and water law. He previously clerked at an environmentally-focused law firm, where he developed an understanding of the complex interplay between federal regulations, state laws and state agencies. Justin also served as a summer associate at Husch Blackwell prior to joining the firm and had the opportunity to analyze the impact of environmental and water law statutes for clients.

With a reputation for working as hard as possible to achieve the best client outcome, Justin wants clients to feel confident in his advocacy. His goal is to ensure that no client has to wonder at the end of a case what might have happened if he’d worked harder.