Return to January 2023 Dairy Dispatch
By Jim Bradbury and Courtney Cox Smith James D. Bradbury, PLLC
The Environmental Protection Agency and Army Corps of Engineers on Dec. 30 announced the final revised rule defining Waters of the United States (WOTUS) under the Clean Water Act. The revised final rule will be effective 60 days after it is published in the Federal Register.
By way of background, the WOTUS definition has been a significant source of conflict and political posturing in recent years as the Obama and Trump administrations each proposed their own rules, making expansive changes to the rule. The 2015 Obama WOTUS Rule cast a wide net over jurisdictional waters, rendering previously exempt waters potentially jurisdictional. Numerous lawsuits quickly followed approval of the 2015 rule.
The Trump administration moved to undo the changes made by the Obama administration to the WOTUS rule and proposed their own Navigable Waters Protection Rule that narrowed the scope of jurisdictional waters. Once again, lawsuits followed. Under the Biden administration, the Navigable Waters Protection Rule was vacated by a federal district court and is now being replaced by the Biden Rule reinstating a reformed pre-2015 definition.
The final rule includes three new legal standards to potentially determine whether a water body is protected by the Clean Water Act: 1) the significant nexus test; 2) the relatively permanent test; and 3) the material influence test. Under the Biden Rule, WOTUS expressly includes:
The final Biden Rule also includes certain exclusions from the WOTUS definition. Several of these exclusions directly impact agricultural operations. Among these important exclusions are prior converted cropland (based on USDA’s definition and generally excluding wetlands that were converted to cropland prior to Dec. 23, 1985), artificially irrigated areas, artificial lakes or ponds (used exclusively for such purposes as stock watering, irrigation, settling basins or rice growing) and waste treatment systems (including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act). These types of water features are not considered WOTUS under the Biden Rule.
For water bodies that pose a question as to whether they are jurisdictional, the agencies look to one of the new legal standards. The “relatively permanent standard” means “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.” A third new alternative legal standard is also in the final rule: the “material influence” standard. Under this standard, a smaller water body must have a “material influence” on a larger water body for the smaller water or wetland to be within the jurisdiction of the Clean Water Act.
The bottom line is that each of these standards create marked gray areas, which will increase uncertainty and leave landowners and operators at the mercy of regulatory employees to determine whether the water at issue qualifies for Clean Water Act protection under any of these standards. And now, the agency can rely on any one of the three tests. So a landowner who wants to avoid a finding of jurisdiction will have to disprove all three tests – a heavy burden not seen before now.
The agencies believe the final rule will be a “durable” rule that will “reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.” Previously, the Biden administration indicated an intent to develop a second rule further refining the definition later this year. Whether that rule-making proceeds may depend largely on the actions of the Supreme Court. As the Biden Rule becomes final, the Supreme Court is poised to rule on an important Clean Water Act case, Sackett v. EPA, which places the “significant nexus” test at issue. The Court heard oral argument on the case in October 2022, and the conservative majority showed their skepticism of that test. If the Court overturns the “significant nexus” test, that will directly impact the final rule, which relies heavily on that test as part of the jurisdictional determination for certain types of waters, not traditionally WOTUS. It appears, therefore, that the durability of the final rule remains to be seen.
In addition to the Sackett case, the final rule will undoubtedly face numerous challenges from industries and trade organizations. It is likely many states will challenge the final rule as well. The certainty invoked by the agencies in releasing this rule could be undermined by the number of delegated state programs, many of which have their own, often broader, definitions of jurisdictional waters. Finally, the three new legal standards adopted by the final rule will undoubtedly sow a myriad of questions and potentially inconsistent applications for landowners, industry and agricultural operators who will be left to the purgatory of case-by-case determinations.
Click here to access the EPA Fact Sheet with more information about the final rule.