As sure as winter leads to spring and spring to summer, when the White House changed parties last year, it was certain that the definition of waters of the United States (WOTUS) would change.
Sure enough, on December 7, 2021, the proposed new definition of WOTUS was published in the Federal Register.
Pre-2015 Definition of WOTUS
The Environmental Protection Agency (EPA) announced the upcoming proposed changes in November. “Today, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (the agencies) announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS) which had been in place for decades, updated to reflect consideration of Supreme Court decisions.”
Why the pre-2015 definition of WOTUS? Because the Obama Administration’s final WOTUS rule was immediately met with litigation and was, for all intents and purposes, never implemented. The definition of WOTUS under the Obama Administration was far too broad and impractical. For more information see our June 29, 2015 Blog.
Navigable Waters Protection Rule
Under the Trump Administration, waters of the United States were defined under the Navigable Waters Protection Rule (NWPR). This definition was met with opposition from various environmental groups who believed the definition was too narrow and didn’t go far enough to protect regulated waters.
It wasn’t until the spring of 2021 that all 50 states were finally regulated under the NWPR. Colorado was the last state to adopt the NWPR until litigation in the spring settled it. See our blog from March 2021 for details.
Defining jurisdictional waters or waters of the United States continues to be a challenge for the USEPA (Photo by Joe Klune on Unsplash).
Interpreting the Proposed WOTUS Rule
The NWPR was vacated in early September 2021. With the vacated rule, we awaited the new WOTUS definition, which came on December 7th. Below is a sampling of the proposed new rule’s content.
The law firm Bricker and Eckler provided this with respect to the proposed rule:
The agencies propose to interpret WOTUS to include:
- Traditional navigable waters, interstate waters and the territorial seas, and their adjacent wetlands
- Most impoundments of WOTUS
- 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
- “Other waters” that meet either the relatively permanent standard or the significant nexus standard
The agencies further define 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”).”
For perspective, the NWPR listed four categories as waters of the United States
- Territorial seas and traditional navigable waters.
- Tributaries of such waters.
- Certain lakes, ponds, and impoundments of jurisdictional waters.
- Wetland adjacent to other jurisdictional waters (other than waters that are themselves wetlands).
The NWPR eliminated the Significant Nexus test. It also listed 12 water features that were not regulated waters. See our January 20, 2020 Blog for details.
Other Comments on the Proposed Rule
The Phelps law firm recently wrote “…under the proposed rule, a body of water may also meet the ‘significant nexus’ standard if it—alone or with similarly situated waters in the same region—significantly affects the ‘chemical, physical, or biological integrity’ of traditional navigable waters.”
From JD Supra: “It was expected that this first rulemaking would simply be a repeal rule. However, the Proposed Rule goes further than a repeal and proposes to codify both the pre-2015 regulation and the agencies’ current interpretation of their previously issued guidance arising from the Supreme Court’s decisions in Rapanos v. United States and SWANCC v. U.S. Army Corps of Engineers” (emphasis added).
The comment period on the proposed rule ends on February 7, 2022.
The early reviews and comments of the proposed rule have been measured, perhaps, because it reverts to the pre-2015 definition, which was in place for decades and is familiar to many.
We will continue to monitor this proposed rule and will share this and other environmental news in this space.
If you need assistance with an environmental issue or would like to discuss more proactive measures you might take in the year ahead, contact Matt Schroeder, M.S., P.E. or Jeff Bolin, M.S., CHMM at 248-932-0228.
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