So, it turns out that those of us who thought that the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) were being a tad hasty in promulgating new “waters of the United States” (WOTUS) regulations in January 2023 were right. Their lifespan was short: The Supreme Court effectively invalidated them in May 2023. See Sackett v. EPA, 598 U.S. 651 (2023). As a result, the agencies published their revised regulations in August 2023—their fifth attempt to define this key term for the Federal Water Pollution Control Act, better known as the Clean Water Act. 33 U.S.C. §§ 1251–1388.
A brief history is in order. The Clean Water Act makes it illegal for any person to “discharge a pollutant” except as allowed under the Act, which generally requires getting a permit. Id. §§ 1311(a), 1342, 1344. A “discharge of a pollutant” includes “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12)(A). “Navigable waters,” in turn, are “the waters of the United States, including the territorial seas.” Id. § 1362(7) (emphasis added). The statute does not further define WOTUS, creating the need for the two agencies that implement the Act—the EPA and the Army Corps—to define that term in regulations.
At first, the two agencies themselves disagreed about how broad the scope of WOTUS should be, with the Army Corps adopting a narrow test limited to traditional navigable waters and EPA advocating for a more expansive scope. After some initial litigation and negotiations, however, they promulgated consensus regulations in the mid-1980s, based on an understanding that the Clean Water Act extends to the limits of congressional power to regulate activities under authority of the the Commerce Clause. 40 C.F.R. § 230.3(s) (1986) (EPA); 33 C.F.R. § 328.3 (1988) (Army Corps). These regulations, now variously referred to as the “pre-2015 regulatory regime” or the “1986/1988 regulations,” remain the default regulations (as modified by Supreme Court decisions) until the agencies promulgate new regulations that survive legal challenge. See U.S. EPA, Pre-2015 Regulatory Regime (updated Oct. 10, 2023); Memorandum from U.S. Army Corps of Eng’rs & U.S. Env’t Prot. Agency, Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) 1–2 (Sept. 27, 2023). As of late October 2023, the pre-2015 regulatory regime remains in force in the 27 states where courts have enjoined the January 2023 regulations (WOTUS IV; see below). U.S. EPA, Definition of “Waters of the United States”: Rule Status and Litigation Update (updated Sept. 8, 2023).
Initially, the U.S. Supreme Court upheld the agencies’ broad understanding of the scope of WOTUS—largely in place by 1977/1978—that they eventually embodied in the 1986/1988 regulations. United States v. Riverside Bayview Homes, 474 U.S. 121, 132–35 (1985). In 2001 and 2006, however, the Court issued decisions that both undermined the 1986/1988 regulations and, ultimately, left the definition of “waters of the United States” ambiguous. Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 171–73 (2001) (excluding isolated waters); Rapanos v. United States, 547 U.S. 715, 732–39 (Scalia, J., plurality), 778–83 (Kennedy, J., concurring) (2006). In particular, the plurality opinions in Rapanos led to a circuit split regarding the proper test or tests for determining waters of the United States. Most of the federal courts of appeals adopted Justice Stevens’ dissenting approach, counting a water as WOTUS if it met either Justice Scalia’s “relatively permanent surface water” and “continuous surface water connection” tests or Justice Kennedy’s “significant nexus” test; the minority of the courts of appeals adopted only Justice Kennedy’s test.
Despite the ongoing litigation, however, further administrative refinements regarding the definition of WOTUS waited until 2015, when the agencies promulgated new regulations (WOTUS II). Army Corps & EPA, Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 2015). Litigation (and politics) ensued, eventually leading to the rule’s repeal in 2019. Army Corps & EPA, Definition of “Waters of the United States”—Recodification of Pre-existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019). After this temporary reinstatement of the 1986/1988 regulations, the agencies promulgated the Navigable Waters Protection Rule in 2020 (WOTUS III). Army Corps & EPA, Navigable Waters Protection Rule, 85 Fed. Reg. 22,250 (Apr. 21, 2020). Again, litigation (and politics) ensued. On August 30, 2021, after the change in presidential administration and despite the agencies’ voluntary request for the rule’s remand, the U.S. District Court for the District of Arizona vacated the Navigable Waters Protection Rule. Pascua Yaqui Tribe v. U.S. Env’t Prot. Agency, 557 F. Supp 3d 949, 955–56 (D. Ariz. 2021). In addition, the Pascua Yaqui Tribe case highlights the increasing involvement of Tribes in WOTUS litigation, a trend that is likely to continue.
On January 24, 2022, the U.S. Supreme Court granted certiorari in Sackett v. U.S. EPA, specifically to decide which approach from Rapanos to delineating WOTUS was the correct one. 142 S. Ct. 896 (2022). Nevertheless, in January 2023, before the Court had a chance to decide Sackett, the EPA and Army Corps issued new regulations to replace the Navigable Waters Protection Rule. Army Corps & EPA, Revised Definition of “Waters of the United States,” 88 Fed. Reg. 3004 (Jan. 18, 2023) (WOTUS IV). Set to take effect on March 20, 2023, this new regulation codified the “either/or” approach that most courts of appeals had adopted. For example, under the January 2023 rule, jurisdictional tributaries included “tributaries to traditional navigable waters, the territorial seas, interstate waters, or [jurisdictional] impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard. . . .” Id. at 3005–06. As the agencies further explained:
The “relatively permanent standard” refers to the test to identify relatively permanent, standing or continuously flowing waters connected to [traditional navigable waters, the territorial seas, or interstate waters], and waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters [Justice Scalia’s test from Rapanos]. The “significant nexus standard” refers to the test to identify 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, the territorial seas, or interstate waters [Justice Kennedy’s test from Rapanos].
Id. at 3006. This dual approach to deciding whether a water is WOTUS permeated the January 2023 rule.
To absolutely no one’s surprise, litigation immediately ensued. By the time the Supreme Court decided Sackett on May 25, 2023, three courts had enjoined the January 2023 regulations from taking effect, affecting 27 states. Texas v. EPA, 2023 WL 2574591, at *11–12 (S.D. Tex. Mar. 19, 2023) (two states); Commw. of Ky. v. EPA, Civil No. 3:23-cv-00008 GFVT, Docket #23 (E.D. Ky. Mar. 31, 2023) (dismissing the case for lack of standing, but on appeal the Sixth Circuit stayed the rule until May 10, 2023) (one state); West Virginia v. EPA, 2023 WL 2914389, at *26 (D.N.D. Apr. 12, 2023) (24 states).
When the Supreme Court decided Sackett, it unanimously chose Justice Scalia’s test from Rapanos. (For more details on the decision itself, see Patrick Paul’s Insights contribution in 38 Nat. Res. & Env’t, no. 2, Fall 2023.) While the Court did not address the January 2023 regulations in its decision, the implications of the case were clear: The WOTUS IV regulations were invalid for relying at least in part on the wrong test.
The result was WOTUS V, which became effective the day it was published in the Federal Register. Army Corps & EPA, Revised Definition of “Waters of the United States”; Conforming, 88 Fed. Reg. 61,964 (Sept. 8, 2023). The agencies styled WOTUS V as a direct final rule, relying on the Administrative Procedure Act’s “good cause” exemption from notice and comment in light of the need to conform the regulations to the Sackett decision. Id. at 61,964–65 (citing 5 U.S.C. § 553(b)(B), (d)(3)). The conforming rule removes all references to “significant nexus” and “significant effect” from the regulations. The result is the leanest definition of “waters of the United States” that the Clean Water Act has known since the Army Corps gave up trying to use the traditional navigability definition in the 1970s, which extends to only five categories of waters: (1) traditional navigable and federal waters—i.e., waters susceptible to use in interstate commerce, waters subject to the ebb and flow of the tide, the territorial seas, and interstate waters; (2) impoundments of waters of the United States; (3) tributaries to the above two categories that “are relatively permanent, standing or continuously flowing bodies of water”; (4) wetlands adjacent to the above three categories that have a “continuous surface connection” to those waters; and (5) intrastate lakes and ponds “that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection” to the first three categories.
40 C.F.R. § 120.2(a) (EPA regulation, as amended Sept. 8, 2023); see also 33 U.S.C. § 328.3(a) (identical Army Corps regulation). Each regulation also has eight exemptions: waste treatment systems; prior converted cropland; ditches draining dry land; artificially irrigated dry land; artificial lakes and ponds on dry land; artificial pools (including swimming pools) and ornamental water features constructed in dry land; water-filled depressions on dry land; and swales and erosional features. 33 U.S.C. § 328.3(b); 40 C.F.R. § 120.2(b). In conformance with Sackett, “adjacent” now “means having a continuous surface connection,” but “wetland” keeps its classic definition:
Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
33 U.S.C. § 328.3(c)(1), (2); 40 C.F.R. § 120.2(c)(1), (2). Notably, the revised rule does not define “continuous surface connection” or “relatively permanent,” potentially leaving room for better understanding of these concepts to develop through case-by-case application.
In the meantime—you guessed it—litigation ensued. Or, more properly this time, ongoing litigation has been reinvigorated. The 24 state plaintiffs in the still-pending case West Virginia v. EPA had until November 13, 2023, to amend their complaints to challenge the conforming regulation, and they indicated that they would. The National Association of Home Builders is participating in all three lawsuits and has publicly denounced the new rule. Complaints about the agencies’ decision to skip notice and comment abound, and many decry the fact that the United States is now subject to two WOTUS regulatory regimes—ignoring the fact that a post-Rapanos circuit split had already been in place for well over a decade.
However, aside from the procedural issue of skipping notice and comment, there doesn’t seem to be much left to challenge in WOTUS V. The Supreme Court has already conceded—even in Rapanos itself—that the Act extends to more than traditionally navigable waters, and, as noted, the rule is a stripped-down definition that parrots the Court’s terminology in Sackett and fully embraces the “relatively permanent” and “continuous surface water” components of Justice Scalia’s test. Maybe WOTUS V is WOTUS LAST.
But don’t put too much money on that bet. . . .
