A new definition of “waters of the United States” (“WOTUS”) will help drive the regulatory reach of the Federal Water Pollution Control Act, or Clean Water Act (“CWA”), starting March 20, 2023.
The term WOTUS is used to determine the extent to which the CWA applies to different types of water bodies, such as rivers, streams, lakes, wetlands, and other water resources. Redefining WOTUS changes the scope of CWA programs imposing water quality standards, allocating total maximum daily loads of pollutants to impaired waters, certifying CWA Section 401 compliance, regulating the discharge of pollutants through National Pollutant Discharge Elimination System permits, and regulating the discharge of dredged or fill material under CWA Section 404 permits.
In recent years, the definition of WOTUS has been the subject of attempted revisions and lawsuits, leaving a wake of inconsistent standards that make regulatory compliance challenging for many land and infrastructure development projects. On January 18, 2023, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) published a final rule to repeal and replace the current definition of WOTUS that was adopted in the 2020 Navigable Waters Protection Rule.
The new rule restores aspects of the WOTUS definition that were in place before 2015 and expands the CWA’s jurisdiction over certain types of water bodies. The new definition of WOTUS includes traditional navigable waters, the territorial seas, and interstate waters; impoundments of WOTUS; wetlands adjacent to most other WOTUS; and tributaries, interstate lakes, ponds, streams, and wetlands that meet the “relatively permanent” standard or the “significant nexus” standard. Several memoranda will guide the EPA and Army Corps’ implementation of the new rule. Those memoranda can be found here, here, here, and here.
Although the final rule incorporates the significant nexus standard, the U.S. Supreme Court is considering whether to strike down this standard in Sackett v. EPA, No. 21-454, which was argued on October 3, 2022 and is awaiting a decision. Since the new rule was published in January, Texas, the American Farm Bureau Federation, and several trade groups have filed litigation challenging the rule as going too far. The Farm Bureau case alleges that the new rule violates the Administrative Procedure Act, contravenes the Clean Water Act, and violates the Commerce Clause, and the Due Process Clause of the U.S. Constitution. The suit requests declaratory relief, an order vacating the final rule, and that the court enjoins the rule’s implementation.
In conclusion, the federal government’s new WOTUS rule redefines the scope of waters regulated under the CWA, which helps to redefine the CWA’s regulatory impact on land development, infrastructure projects, and pollutant discharges. Whether or how long the new rule will be implemented depends on how it stands up in litigation filed before the rule even became effective.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorneys or any of Kronick’s Municipalities and Special Districts or Water Law attorneys.
Lauren Bernadett
lbernadett@kmtg.com | 916-321-4347
Eric Robinson
erobinson@kmtg.com | 916.321.4576
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