The Legal Intelligencer
(by Lisa Bruderly)
The controversy continues over the hotly contested definition of “waters of the United States” (WOTUS), a phrase that determines the scope of federal jurisdiction over streams, wetlands and other waterbodies under the Clean Water Act (CWA). The U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (Corps) published a proposed revision to the WOTUS definition on December 7, 2021 (Rule 1), with the public comment period closing on February 7, 2022. Nearly 90,000 comments were received.
This proposed definition is similar to the pre-2015 definition of WOTUS, which is currently in effect, but it also includes updates to reflect relevant Supreme Court decisions (e.g., Rapanos v. United States) that occurred in the early 2000s. Much of the controversy surrounding the WOTUS definition relates to the two tests identified in the Rapanos decision. Justice Antonin Scalia issued the plurality opinion in Rapanos, holding that WOTUS would include only “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to such relatively permanent waters.” Justice Anthony Kennedy, however, advanced a broader interpretation of WOTUS in his concurring opinion, which relied on the concept of a “significant nexus.” In his opinion, Justice Kennedy stated that wetlands should be considered as WOTUS “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered water.”
If promulgated, the December 2021 proposed WOTUS definition would incorporate Justice Kennedy’s significant nexus test into the regulations, by designating waters such as wetlands, lakes and streams as WOTUS if they “alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity” of traditionally navigable waters. The proposed rule defines “significantly affect” to mean “more than speculative or insubstantial effects” on the integrity of the traditionally navigable waters based on the distance from a water of the United States or traditionally navigable water; hydrologic factors, including shallow subsurface flow; the size, density, and/or number of waters that have been determined to be similarly situated; and climatological variables such as temperature, rainfall, and snowpack.
If the December 2021 proposed WOTUS definition is promulgated, the impact is not expected to be extremely significant because, under the current definition of WOTUS, the Corps has largely been relying on its 2008 guidance, which already considers Kennedy’s significant nexus test.
New Proposed WOTUS Definition Expected This Year
However, the Biden administration intends additional (potentially more expansive) revisions to the WOTUS definition in a second rulemaking (Rule 2), planned for later this year. Broadly, the more expansive the definition of WOTUS, the more waters that are federally regulated, and the more likely that surface water impacts from a project will require Section 404 permitting. The increased amount of impacts to federally-regulated waters may cause a project to exceed nationwide permit (NWP) or state programmatic permit (e.g., PASPGP-6) thresholds and require an individual Section 404 permit. Typically, obtaining an individual permit is a more expensive and lengthy process than obtaining coverage under a general permit (i.e., NWP or PASPGP-6).
While the extent of Rule 2 is unknown, as stated in the Fall 2021 Unified Agenda, “[t]his second rule proposes to include revisions reflecting on additional stakeholder engagement and implementation considerations, scientific developments, and environmental justice values. This effort will also be informed by the experience of implementing the pre-2015 rule, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule.”
U.S. Supreme Court Agrees to Hear WOTUS Case
In addition to planned changes to the definition by the Biden administration, the U. S. Supreme Court, in January 2022, signaled that it would weigh in on the WOTUS debate, when it agreed to hear the case of Sackett v. USEPA. In Sackett, landowners in Idaho have had a long-standing challenge to an administrative order issued against them for alleged unpermitted fill of wetlands. The Sacketts’ arguments largely pertain to whether Justice Kennedy’s significant nexus test in Rapanos is the appropriate test to delineate the wetlands as WOTUS.
In 2021, the Ninth Circuit ruled against the Sacketts’ position and held that the “significant nexus” test in the Kennedy concurrence was the controlling opinion from Rapanos. The Sacketts petitioned the U.S. Supreme Court to consider whether Rapanos should be revisited to adopt the plurality’s test for wetland jurisdiction under the CWA. However, the Court agreed, instead, to consider the narrow issue of whether the 9th Circuit “set forth the proper test for determining whether wetlands are ‘waters of the United States.’” The Supreme Court’s decision as to whether Justice Kennedy’s concurring opinion is controlling will be very significant in future interpretations of WOTUS.
Recent Changes to the NWP Program
The changes to the definition of WOTUS coincide with the U.S. EPA and the Corps recently issuing updates regarding certain NWPs under Section 404 of the CWA and Section 10 of the Rivers and Harbors Act of 1899. Additional revisions are planned in 2022. Broadly, NWPs authorize certain work in streams, wetlands, and other WOTUS when those activities will result in no more than minimal individual and cumulative adverse environmental effects.
The reissuance of 40 existing NWPs and issuance of one new NWP (Water Reclamation and Reuse Facilities), on December 27, 2021, rounded out NWP rulemaking activities that began in September 2020, when the Corps, under the Trump administration, proposed to reissue the 52 existing NWPs and issue five new NWPs. In January 2021, the Corps modified and reissued 12 existing NWPs that largely related to the energy industry and issued four of the five proposed NWPs. The January 2021 final rule also revised and reissued the NWP general conditions and definitions.
While the December 2021 reissuance includes relatively minor changes to several NWPs, it also adds consistency to the NWPs as a whole, by (1) making the newly reissued NWPs subject to the general conditions and definitions included in the January 2021 rule; and (2) identifying the expiration date for the newly reissued permits as March 14, 2026, consistent with the expiration date of the NWPs that were reissued in January 2021. These NWPs go into effect on February 25, 2022.
Looking ahead, the Biden administration intends to reevaluate the NWPs later this year. According to the Fall 2021 Unified Agenda of Regulatory Actions, the Corps is planning a comprehensive rulemaking in 2022 to re-examine all NWPs issued in 2021 “to identify NWPs for reissuance, modification, or issuance, in addition to identifying potential revisions to general conditions and definitions in order to be consistent with Administration policies and priorities.” Changes to the NWP program are expected to address, among other things, climate change and environmental justice.
With expected WOTUS and NWP developments from the U.S. EPA, the Corps and the U. S. Supreme Court, 2022 is shaping up to be a critical year for federal water law. Babst Calland will continue to track developments and changes to the definition of WOTUS and the NWP program. If you have any questions about these developments, please contact Lisa Bruderly at 412.394.6495 or lbruderly@babstcalland.com.
For the full article, click here.
Reprinted with permission from the February 24, 2022 edition of The Legal Intelligencer© 2022 ALM Media Properties, LLC. All rights reserved.