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Whiplash: A key definition under the Clean Water Act is again changing

on Monday, 15 November 2021 in Environmental Pulse: Vanessa A. Silke, Editor

The Biden Administration is expanding the scope of federal jurisdiction by amending the definition of the term ‘waters of the United States.’ Do you need a permit?

The Clean Water Act, 33 U.S.C. § 1251 et seq. (the “CWA”) is the primary federal statute regulating water quality in the United States.  The phrase “waters of the United States” (often referred to as “WOTUS”) limits the types of waterbodies over which the federal government can assert jurisdiction. Section 404 of the CWA requires a federal permit for dredged or fill materials that go into WOTUS, and section 402 requires a federal permit for any pollutant discharged from a point source into WOTUS.  Stated a little differently, the definition of WOTUS dictates whether the use of a property requires a permit under the CWA.

Procedurally, the definition of the term WOTUS is amended through rulemaking by the U.S. Environmental Protection Agency (the “EPA”) and the U.S. Army Corps of Engineers (the “Corps”).  

Before 2015, those agencies last comprehensively defined WOTUS in 1986.  A series of U.S. Supreme Court cases interpreted those regulations.  See Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”); Rapanos v. United States, 547 U.S. 715 (2006).  A guidance document issued in 2008 under the Bush administration also provided guidance.  But those cases and guidance only blurred the agencies’ definition of WOTUS.  For years, the regulated community pleaded for a clear definition that could be readily interpreted and uniformly applied. 

In 2015, the Obama administration attempted to clarify WOTUS with a new rule.  States, industry groups, and private landowners objected.  Arguing that it impermissibly expanded the scope of federal jurisdiction, they sued to block the new rule’s implementation.  Many of these suits were successful, and courts halted the rule’s implementation in much of the country.  Under the Trump administration, the agencies in 2019 and 2020 engaged in a two-step process to repeal and replace the Obama administration’s definition with one much narrower in scope.  

That effort likewise met significant opposition and litigation.  Recently, federal judges in Arizona and New Mexico struck down the Trump administration’s rule limiting the CWA’s geographic scope.  See Pasqua Yagui Tribe et al. v. U.S. Environmental Protection Agency, No. CV-20-00266 (D. Ari. Aug. 30, 2021); Navajo Nation v. Regan et al., No. 20-CV-602 (D. N.M. Sept. 27, 2021).  While those decisions would not necessarily have bound other jurisdictions, the EPA subsequently announced on its website that it and the Corps would no longer enforce the Trump administration’s WOTUS rule.  Instead, they would interpret WOTUS in accordance with the “pre-2015 regulatory regime until further notice.”  As a result, those decisions have gone into effect nationwide, at least until further legal challenge or the announcement of a new rule.  

This means that the regulated community is bound by WOTUS as defined by the federal agencies before 2015 and interpreted by the Supreme Court in SWANCC and Rapanos.  The EPA has cited 40 C.F.R. § 120.2 as its operative definition for now.

The Biden administration announced that it would begin the process of adopting a new WOTUS definition by rule.  This will likely result in an expansion of permitting requirements.  Once the EPA and the Corps announce a proposed rule, the public will have the opportunity to submit comments.  By making public comments, the regulated community can inform the Biden administration about the effects of the proposed rule and force the agencies to explain why the proposed rule is necessary.  Public comments can also lay the groundwork for a legal challenge. 

We regularly assist clients with preparing and submitting comments to federal rulemaking efforts, as well as the determination of permits necessary under the CWA.  We will continue to monitor the WOTUS rulemaking process and provide updates.  Please contact us with your questions about federal permitting and participation in the rulemaking process.

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