Biden Administration Rolls Out ‘Durable’ WOTUS Definition in Final Rule
Credit to Author: Sonal Patel| Date: Fri, 30 Dec 2022 18:15:35 +0000
The Biden administration has rolled out in a final what it says is a “durable” definition of “waters of the U.S.” (WOTUS), potentially capping a legal and political battle that has raged for nearly two decades.
The final rule issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army on Dec. 30 returns to a framework founded on a pre-2015 Bush-era definition with updates to reflect existing Supreme Court decisions. “It establishes limits that appropriately draw the boundary of waters subject to federal protection,” the EPA said Friday.
EPA: Rule Provides ‘Reasonable’ Approach to Address Regional Differences
As interpreted by the final rule, the term WOTUS includes “those waters that Congress fundamentally sought to protect in the Clean Water Act [CWA]—traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters,” the EPA said.
“Traditional navigable waters” includes certain large rivers and lakes, territorial seas, and interstate waters. But for upstream waters that may significantly affect the integrity of downstream waters “that Congress intended to protect” under the CWA the rule “provides a reasonable approach that recognizes regional and geographic differences,” the agency said. “The rule accounts for regional differences in waters because regionally tailored implementation tools, as well as local and regional conditions, help determine whether waters are covered under this rule,” it said.
Types of Waters | Features | Examples of Waters Likely to Be Jurisdictional Under the Final Rule | Regulatory Text Paragraph |
Traditional Navigable Waters | Large rivers and lakes that could be used in interstate or foreign commerce, as well as water bodies affected by tides. | Mississippi River, Erie Canal, Great Lakes | (a)(1) |
Territorial Seas | Territorial seas that extend three miles out to sea from the coast. | Atlantic Ocean, Pacific Ocean | (a)(1) |
Interstate Waters | Includes waters like streams, lakes, or wetlands that cross or form part of state boundaries. | Lake Tahoe, portions of the Columbia River, portions of Savannah River | (a)(1) |
Impoundments | Impounded bodies of water created in or from “waters of the United States,” like reservoirs and beaver ponds. | Bear Gulch Reservoir in California | (a)(2) |
Tributaries | Branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into traditional navigable waters, the territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or significant nexus standard. | Wolftrap Run in Virginia, Puppy Creek in Arkansas | (a)(3) |
Adjacent Wetlands | These wetlands can be next to, abutting, or near other jurisdictional waters or behind certain natural or constructed features. They are most often within a few hundred feet of jurisdictional waters. Adjacent wetlands are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water. | Parts of the Florida Everglades, Horicon Marsh in Wisconsin | (a)(4) |
Additional Waters | These lakes, ponds, streams, or wetlands do not fit into the above categories. They are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard. | Certain local lakes, streams, wetlands, etc. | (a)(5) |
Reintroducing the Significant Nexus Standard
The final rule, however, also describes standards for determining jurisdiction for tributaries, adjacent wetlands, and additional waters. “Certain types of waters are jurisdictional under the final rule if they meet either the ‘relatively permanent standard’ or ‘significant nexus standard’,” the EPA explained.
“Relatively Permanent is a test that provides important efficiencies and clarity for regulators and the public by readily identifying a subset of waters that will virtually always significantly affect paragraph (a)(1) waters”—waters currently or historically used for commerce, the EPA said. “To meet the relatively permanent standard, the waterbodies must be relatively permanent, standing, or continuously flowing waters connected to paragraph (a)(1) waters or waters with a continuous surface connection to such relatively permanent waters or to paragraph (a)(1) waters.”
The Significant Nexus test, meanwhile, clarifies if certain waterbodies—tributaries and wetlands—are subject to the CWA based on their “connection to and effect on larger downstream waters that Congress fundamentally sought to protect,” the agency added. “A significant nexus exists if the waterbody (alone or in combination) significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.”
As significantly, the final rule codifies eight exclusions from the definition of WOTUS. These include ditches—including roadside ditches. Ditches, however, must be “excavated wholly in and draining only dry land, and do not carry a relatively permanent flow of water.” The exclusions also include waste treatment systems, “including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act.”
POWER has reached out to industry experts for insight into how the final rule and its codified exclusions could affect power generation operations and maintenance. It will update this article when comments are received. However, as POWER has previously reported, experts anticipated the biggest impact on the industry would be a return to the Significant Nexus test established in the pre-2015 Bush era, but which the Trump-era rule scuttled. Experts also pointed to potential rulemaking impacts related to the Section 404 permit program, which regulates the discharge of dredged or fill material into waters of the U.S., including wetlands.
A ‘Durable’ WOTUS Definition?
The final rule marks a clear reversal toward a broader definition of what constitutes “WOTUS.” While WOTUS is not defined in the CWA, the EPA and the Army have widely used the term in regulations since the 1970s. The term also figures prominently in the agencies’ jointly implemented programmatic activities. Over the years, WOTUS has effectively emerged as a threshold term that establishes a geographic scope of federal jurisdiction under the CWA.
However, the term has been contentious and has drawn protracted legal battles. The federal rule’s promulgation has its roots in two major U.S. Supreme Court cases: Solid Waste Agency of Northern Cook County v. U.S. et al. (2001), and Rapanos et ux., et al. v. U.S. (2006). While Rapanos was an especially fractured decision, Justice Kennedy’s formulation of a “significant nexus” test for determining jurisdiction was integrated into legal guidance published by the EPA in 2007 and revised in 2008, during the Bush administration.
In 2015, the Obama administration issued a final rule, known as the “Clean Water Rule,” based largely on Justice Kennedy’s concurring opinion that granted the federal government broader powers to limit pollution. The Obama-era rule, however, became a sticking point for the electric power industry, which expressed concerns that water near power plants, such as water drainage ditches and cooling ponds, may be considered U.S. waters. According to the Nuclear Energy Institute, the rule would create “significant practical problems” for companies operating nuclear power plants and planning new facilities. Similarly, the American Public Power Association suggested the final rule is problematic because it would drastically expand the WOTUS jurisdiction of EPA and the Corps, “which would subject more utility projects and activities to Clean Water Act jurisdiction.”
The power industry widely applauded the Trump administration’s promulgation of the final “Navigable Waters Protection Rule” (NWPA) in 2020, mainly because it narrowed WOTUS’s definition to exempt groundwater and ditches from regulation under the CWA. The 2020 NWPA rule, however, was vacated in August 2021 by the U.S. District Court for the District of Arizona and in September 2021 by the U.S. District Court for the District of New Mexico.
But even before these federal district court decisions, the Biden administration was working to scuttle the NWPA. It announced its intent to revise the definition of WOTUS in June 2021, citing “destructive impacts” to critical water bodies under the Trump-era rule. It issued a proposed rule in November 2021 and rolled out its final rule on Dec. 30.
The EPA and Army Corps on Friday said the rule takes into consideration “best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.” The agencies said a key priority was to establish a “durable” definition of WOTUS “to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.”
Assistant Secretary of the Army for Civil Works Michael L. Connor said the rule’s “clear and supportable” definition of WOTUS would allow for “more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders.”
On Friday, the agencies also moved to improve federal coordination in the ongoing implementation of WOTUS. A first step entails issuing a joint coordination memo “to ensure the accuracy and consistency of jurisdictional determinations under this final rule.” The agencies in addition issued a a memo with U.S. Department of Agriculture to provide clarity on the agencies’ programs under the Clean Water Act and Food Security Act.
—Sonal Patel is a POWER senior associate editor (@sonalcpatel, @POWERmagazine).
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