Articles, Newsletters and Advisories
The PIOGA Press
(by Lisa Bruderly)
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced, on September 3 that they had halted implementation of the current definition of “waters of the United States” (WOTUS) effective immediately and reverted back to the pre-2015 definition until further notice. The switch follows an August 30 order from the U.S. District Court for the District of Arizona, which remanded and vacated the definition of WOTUS promulgated by the Trump administration in 2020 (commonly referred to as the Navigable Waters Protection Rule (NWPR)) in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. While there was speculation that the court’s vacatur could be narrowly interpreted to apply only to states where the plaintiffs in the case were located (i.e., Arizona, Minnesota, Washington and Wisconsin), EPA and the Corps are applying the change in WOTUS definition nationwide.
Importance of the definition of WOTUS
The deﬁnition of WOTUS identiﬁes which waters are federally-regulated under the Clean Water Act (CWA), and therefore determines when a federal permit is required for projects (e.g., pipelines, access roads, well pads) that involve dredging or ﬁlling of a waterbody (i.e., a Section 404 permit). The WOTUS deﬁnition also aﬀects federal spill reporting and spill prevention planning.
With regard to Section 404 permitting, the more expansive the deﬁnition of WOTUS, the more waters that are federally-regulated. The extent of WOTUS impacts resulting from a project determines whether an individual or a general Section 404 permit is required, with the process for obtaining an individual permit typically resulting in more Corps involvement, delay and expense.
Significance of the change in WOTUS definition
When the Trump administration promulgated the NWPR in 2020, environmental groups criticized and challenged the new WOTUS deﬁnition, claiming it was too narrow and did not federally regulate enough types of waters. For example, the NWPR did not federally regulate ephemeral streams or other waters based on Justice Anthony Kennedy’s “signiﬁcant nexus” test, introduced in the seminal Supreme Court opinion Rapanos v. United States and Carabell v. United States.
By vacating the NWPR, WOTUS are again described under a deﬁnition promulgated in the late 1980s and interpreted in subsequent EPA/Corps guidance that was issued following the Rapanos and Solid Waste Agency of Northern Cook County (SWANCC) v. United States Supreme Court decisions. This earlier deﬁnition and subsequent interpretations are generally considered to be more expansive and inclusive than the NWPR. Subsequently, reverting to this earlier deﬁnition is expected to result in more waters being federally regulated.
Biden administration’s plan to revise the WOTUS definition
President Biden has always intended to revise the deﬁnition of WOTUS. In his ﬁrst week in oﬃce, he asked EPA and the Corps to consider revising or rescinding the current deﬁnition. On June 9, EPA and the Corps announced their intent to revise the WOTUS deﬁnition “to better protect our nation’s vital water resources.” The agencies identiﬁed a two-step rulemaking process, which would ﬁrst restore protections in place prior to 2015 with updates to reﬂect relevant Supreme Court decisions, and a second rulemaking that would continue to “reﬁne and build” on the prior deﬁnition. In addition to developments in science, EPA and the Corps identiﬁed that the new rulemaking would consider, among other things, the eﬀects of climate change and input received from disadvantaged communities with environ-mental justice concerns.
On the same day, the Department of Justice (DOJ) ﬁled a motion to request remand of the NWPR to EPA and the Corps. DOJ also asked courts to stay judicial challenges to the current WOTUS deﬁnition while the Biden administration reconsidered the deﬁnition. However, the court in the Pascua Yaqui Tribe case, instead remanded and vacated the NWPR deﬁnition. This vacatur prompted the EPA/Corps decision on September 3 to revert to the pre-2015 WOTUS deﬁnition.
Anticipated impact and timing
While the WOTUS deﬁnition proposed by the Biden administration will certainly be more expansive than the NWPR, it is yet unclear how far the pendulum will swing with the proposed rulemakings. The agencies have expressed their intent to develop a “durable” deﬁnition of WOTUS based on input from “diverse perspectives and based on an inclusive foundation.” To start this process, the agencies solicited pre-proposal written recommendations about how to deﬁne WOTUS and implement this deﬁnition. In addition, the agencies held several public meetings, during which the public could pro-vide verbal recommendations. More public engagement is anticipated, including 10 geographically focused roundtables for stakeholders.
Among other things, the Biden administration’s deﬁnition of WOTUS will most likely regulate waters (including ephemeral streams) that are considered to have a “signiﬁcant nexus” to traditionally navigable waters. This deﬁnitional change is expected to require more energy infrastructure projects to obtain federal CWA permitting, thus extending the time and increasing cost of permitting for many projects that impact waters. No timeframe for the new rulemakings has been announced. While EPA’s Spring 2021 Uniﬁed Agenda of Regulatory and Deregulatory Actions identiﬁed revision of the deﬁnition of WOTUS as a “long-term action,” with unspeciﬁed dates for the proposed and ﬁnal actions, it is unclear whether this most recent change in WOTUS deﬁnition will change the schedule for proceeding with the proposed rulemakings.
Babst Calland will continue to track developments related to the federal regulation of waters and will provide necessary updates. If you have any questions or would like any additional information, please contact Lisa M. Bruderly at 412-394-6495 or email@example.com.
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Reprinted with permission from the September 2021 issue of The PIOGA Press. All rights reserved.