New Guidance for Defining the ‘Waters of the United States’ | Goldberg Segalla
The Environmental Protection Agency announced March 10 it will be revising the definition for the Waters of the United States Rule (WOTUS). In a news release it said, “[t]he agencies will move quickly to ensure that a revised definition follows the law, reduces red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation’s navigable waters from pollution.”
In connection with this revision, the EPA will be relying on the Supreme Court decision in Sackett v. Environmental Protection Agency, which limited the definition of WOTUS under the Clean Water Act to only wetlands and bodies of water with “continuous surface connection” to “traditional interstate navigable waters.” The definition is important because it determines whether the U.S. Army Corps of Engineers and the EPA have jurisdiction under the Clean Water Act (CWA) to regulate certain bodies of water.
Two days after the announcement, the EPA, the U.S. Department of the Army, and the U.S. Army Corps of Engineers, issued a joint memo providing guidance to field staff for implementing the definition of a “continuous surface connection,” in accordance with Sackett. This memo claims to be responding to “… requests for clarification on the implementation of the Federal Water Pollution Control Act, also known as the Clean Water Act, with respect to adjacent wetlands in light of the Supreme Court’s decision in Sackett v. Environmental Protection Agency.” The memo also states that “[t]he EPA and the Department of the Army will apply this guidance when determining if a wetland has a “continuous surface connection” to a requisite jurisdictional water under the Clean Water Act.”
The memo provides a two-part test in determining whether the CWA applies: “First, the adjacent body of water must be a “water of the United States,” which generally means traditional navigable waters, or a relatively permanent body of water connected to a traditional navigable water. Second, the wetland, assuming it satisfies the agencies’ longstanding regulatory definition of ‘wetlands’ at 33 C.F.R. 328.3 and 40 C.F.R. 120.2, must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends, and wetland begins.” According to this memo, both the EPA and the Department of the Army will also hold six listening sessions and a 30-day docket for recommendations regarding defining key aspects of WOTUS.
The current definition of WOTUS is based on a September 2023 conforming rule amending the final “Revised Definition of ‘Waters of the United States Rule,’” of January 18, 2023. The September 2023 conforming rule amendment was made because there were some parts of the January 2023 final rule that were inconsistent with the Supreme Court’s ruling in Sackett. In May 2023, the Supreme Court in Sackett found that backfilling a lot to build a house that was near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake, did not provide a sufficient nexus to wetlands to trigger WOTUS. The Sackett decision relied on an earlier decision in Rapanos v. United States, thatrejected the significant nexus test for determining jurisdiction under the CWA.
As the EPA reports, however, application of a unified definition for WOTUS has been stymied by ongoing litigation. In 24 states, plus the District of Columbia, the January 2023 final rule with September 2023 conforming rule amendment is being implemented. In the 26 other states, “the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime and the Supreme Court’s decision in Sackett until further notice.”
The joint memo provides guidance for the definition of adjacent wetlands under section (4) of the definition of WOTUS. Using this guidance, the wetland essentially needs to touch the covered water to be considered adjacent. This will limit the application of the definition WOTUS, but it is consistent with Sackett.
