New Year, New WOTUS Rule

• Jurisdiction: United States,Federal
• Law Firm: Nexsen Pruet
• Subject Matter: Environment, Environmental Law, Waste Management
• Author: Mr Michael Traynham
• Published date: 04 January 2023

EPA and the US Army Corps of Engineers announced on Friday, December 30, 2022, the final, pre-publication version of a "Revised Definition of 'Waters of the United States' ["WOTUS"]" rule. This 2022 WOTUS Rule will become effective 60 days after its publication in the Federal Register. The new Rule purports to return to the pre-2015 definition of WOTUS which was implemented by the agencies for over 40 years, and, according to an EPA fact sheet on the new Rule (available here), prioritizes "practical, on-the ground implementation by providing tools and resources to support timely and consistent jurisdictional determinations[.]"

The Clean Water Act (CWA), passed in 1972, does not define WOTUS, so from passage of the statute until 2001, agency interpretation of what WOTUS meant was set out by regulation and remained largely unchanged. In 2001, the U.S. Supreme Court interpreted the phrase in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers and narrowed the definition to exclude intrastate waters used as habitat for migratory birds. 531 U.S. 159 (2001). The term was further explored (not to say clarified) in Rapanos v. United States, where the Supreme Court issued a 4-1-4 plurality opinion attempting to capture what water bodies are properly regulated under the CWA. 547 U.S. 715 (2006). Notably, it was Justice Kennedy's standalone concurrence in Rapanos that defined WOTUS practice for the next decade. Kennedy opined that those waters with a "significant nexus" to traditionally navigable waters must necessarily fall within the jurisdiction of the CWA, regardless of whether they are relatively permanent or bear a surface connection with adjacent jurisdictional waters.

Justice Kennedy's "significant nexus" test predominated jurisdictional determinations until 2015, when President Obama's administration adopted the "Clean Water Rule," significantly expanding the regulatory definition of WOTUS. The Clean Water Rule was immediately challenged by a multitude of litigants, resulting in a number of federal court decisions that stayed the application of the rule in a number of jurisdictions, effectively creating a patchwork of applicable WOTUS definitions that varied based on geography. The Trump administration issued a repeal rule in 2019, which took the WOTUS definition back to pre-2015 regulations (and the Rapanos "significant nexus" standard), and then followed the repeal with the issuance of the Navigable Waters Protection Rule...