On November 18, the United States Environmental Protection Agency (U.S. EPA) and the Department of the Army, Corps of Engineers announced their proposed updates to the definition of waters of the United States (WOTUS) via a notice of proposed rulemaking. The proposed rule was officially published in the Federal Register on December 7, 2021.

To recap, the Biden administration signaled in June 2021 that it planned to repeal the Trump-era water rule and issue new regulations defining which waterways are federally protected under the Clean Water Act. In August, a federal judge in Arizona vacated the Trump administration’s water rule and restored the prior 1986 standard, thus teeing up the agencies’ most recent action. See Pasqua Yaqui Tribe, et. al, v. EPA, No. CV-20-00266 (D. AZ Aug 30, 2021). In a likely nod to the significant legal challenges that can be expected for such a large regulatory undertaking, the Biden administration’s WOTUS rule is broader in scope than the Trump rule, but narrower than that established by the Obama administration.

According to a statement issued by U.S. EPA Administrator Michael Regan, “durability” of the definition is the key to U.S. EPA’s latest WOTUS offering: “In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America. Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters.”

Since the 1970s, U.S. EPA and the Department of the Army have defined “waters of the United States” by regulation. In the mid-1980s, both agencies promulgated a definition of “waters of the United States.” The latest proposed WOTUS rule is a revision of the pre-2015 regulatory definition and seeks to incorporate and account for past and recent Supreme Court precedent. See United States v. Riverside Bayview Homes, Inc., SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States. By incorporating past Supreme Court precedent, the agencies will likely attempt to make the WOTUS rule less vulnerable to legal challenge than was the Obama administration’s more sweeping WOTUS rule, or the Trump administration’s abbreviated replacement. The WOTUS rule would revert to the 1986 rule and, in the agencies’ explanation, modify it to incorporate the holdings of these cases. The effect would be to establish a significantly expanded version of the 1986 rule.

According to its preamble, the WOTUS rule would interpret the term “waters of the United States” to include:

  • Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands;
  • Most impoundments of “waters of the United States”;
  • Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard;
  • Wetlands adjacent to impoundments and tributaries that meet either the relatively permanent standard or the significant nexus standard; and
  • “Other waters” that meet either the relatively permanent standard or the significant nexus standard.

The rule defines the “relatively permanent standard” as “waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters.” The “significant nexus standard” is defined as “waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas (the ‘foundational waters’).” The proposed rule plays a balancing act between including the coverage of the 2015 Obama-era rule, while setting aside the categorical inclusions that brought that rule to a halt via litigation. The result will likely be an uptick in agency case-by-case analyses, as the agencies seek to apply the multiple standards set forth in the new definition.

Real estate and infrastructure developers, those in the agricultural industry, and those in the energy sector and beyond should follow these developments closely. Parties wishing to get involved directly may pursue public participation in the rulemaking process. U.S. EPA and the Army Corps of Engineers are taking comment on this proposed rule through February 7, 2022.