Last month, following years of regulatory revisions and a 2023 landmark US Supreme Court decision, federal agencies once again proposed a revision to the regulatory definition of “waters of the United States,” or WOTUS, a key phrase in the Clean Water Act that determines the jurisdictional reach of the act.
The practical impact of the proposed changes remains to be seen. But near-term implications for practitioners and the regulated community could be significant, assuming the rule goes into effect as proposed.
While the government intends for the proposed revisions to provide much-needed clarity, some proposed changes could give rise to new questions of interpretation — and create geographic differences in how the statute is applied.
Proposed Rule
On Nov. 17, the Army Corps of Engineers and the US Environmental Protection Agency released a proposed rule revising the regulatory definition of WOTUS. The proposed rule is just the latest in a seemingly never-ending series of changes to the WOTUS definition — changes instigated both by rulemaking and US Supreme Court decisions.
The new proposed definition builds upon several regulatory changes implemented by the Biden administration in September 2023 to further align the WOTUS definition with the Supreme Court’s ruling earlier that year in Sackett v. EPA.
Following the September 2023 revisions, the regulations currently in effect in 24 states define WOTUS as waters that are used, have been used, or may be susceptible to use in interstate or foreign commerce — including all waters that are subject to the ebb and flow of the tide, the territorial seas and interstate waters.
These waters comprise “traditional navigable waters.” The current definition also encompasses certain impoundments of WOTUS, such as tributaries of traditional navigable waters that are relatively permanent, standing or continuously flowing bodies of water; and intrastate lakes and ponds where these waters are relatively permanent, standing or continuously flowing bodies of water and have a continuous surface connection to traditional navigable waters or tributaries.
Wetlands are also jurisdictional under the 2023 rule as amended after Sackett if they are adjacent to a traditional navigable water, a jurisdictional tributary or a jurisdictional impoundment, and if they have a continuous surface connection to those waters.
However, in the rest of the country, due to the impact of litigation, the agencies base jurisdiction on the 1986 definition of WOTUS as implemented in light of a number of Supreme Court decisions, including Sackett.
As proposed, the new revised definition would expressly exclude interstate waters and intrastate lakes and ponds from the definition of WOTUS, unless those waters have a connection to a traditional navigable water.
The proposed rule also would clarify that groundwater is not a WOTUS. The rule also proposes to define several key terms, including “relatively permanent,” “continuous surface connection” and “tributary.” These may be the proposed changes of most import for practitioners.
New Exclusions
The rule proposes to exclude interstate waters and intrastate lakes or ponds unless they are otherwise jurisdictional. The agencies reason that the exclusions are needed because these categories can encompass bodies of water that do not meet the current definition of WOTUS.
In other words, such waters are not relatively permanent, standing or continuously flowing, or are not themselves connected to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.
Definition of Key Terms
To provide further clarity surrounding what impoundments, tributaries and wetlands are included in the definition of WOTUS, the agencies propose to define “relatively permanent,” “continuous surface connection,” and “tributary” as described below.
Relatively Permanent
The proposed rule defines “relatively permanent” as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.”
The agencies explain that the use of “wet season” is faithful to the Supreme Court plurality’s 2006 opinion in Rapanos v. U.S., and the majority’s opinion in Sackett, by excluding ephemeral streams — surface waters that flow only in direct response to precipitation — but not excluding seasonal waters.
Ephemeral waters were already excluded from the WOTUS definition post-Sackett. However, defining ephemeral waters has been open to some differing interpretation. The addition of the wet season requirement is aimed at providing more clarity. But as noted below, this new phrase raises a number of questions.
Wet Season
While “wet season” is not a defined term in the proposed regulations, the agencies state that geographic region is a key factor in determining the length and timing of expected flow during the wet season.
The agencies explain that “[t]he time period, including duration, constituting a ‘wet season’ varies across the country due to many relevant factors including climate, hydrology, topography, soils, and other conditions.”
The proposed rule notes that the phrase “at least during the wet season” is intended to include extended periods of predictable, continuous surface hydrology occurring in the same geographic feature year after year in response to the wet season, such as when average monthly precipitation exceeds average monthly evapotranspiration. As proposed, surface hydrology would be required to be continuous throughout the entirety of the wet season.
The agencies “intend that this surface water requirement would occur predictably, year after year, except for in a period of extreme drought.”
Continuous Surface Connection
The proposed rule defines “continuous surface connection” as “having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.”
This proposed definition provides a two-prong test that requires both (1) abutment of a jurisdictional water; and (2) having surface water at least during the wet season.
The surface water requirement is a new feature, and may lend itself to questions about what constitutes surface water, and the import of sustained drought.
Tributary
Under the proposed rule, “tributary” is defined as a body of water with relatively permanent flow, and a bed and banks, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.
The rule further provides that a tributary does not include a body of water that contributes surface water flow to a downstream jurisdictional water through a feature such as a channelized non-jurisdictional surface water feature, subterranean river, culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, wetland, or similar natural feature, if such feature does not convey relatively permanent flow. This is also a new element of the proposed rule.
In addition, the proposed rule provides more specific and updated definitions for certain waters that have previously been excluded from the definition of WOTUS, including ditches, prior converted cropland and waste treatment systems.
The proposed rule also expressly excludes groundwater from the definition of WOTUS, including groundwater drained through subsurface drainage systems. This change is consistent with the agencies’ past practice of determining that groundwater is not a WOTUS.
The agencies request comments on specific issues by Jan. 6. These issues include, but are not limited to, alternative approaches to determining the jurisdictional scope of the act, the definition of “relatively permanent,” the most appropriate method to identify the wet season, and whether the “wet season” and “continuous surface connection” framework would have a disproportionate impact on certain areas of the country.
Implications of the Proposed Changes
Through issuance of the proposed rule, the agencies state that they aim to “ensure clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public.” Whether the proposed changes will accomplish these goals remains to be seen.
For practitioners and regulated entities, the proposed changes could provide clarity. In the wake of Sackett, Corps districts and EPA regions have inconsistently implemented the jurisdictional approach outlined by the Supreme Court.
While most practitioners have understood ephemeral streams to be nonjurisdictional following the Sackett opinion, agencies have at times continued to require applicants to include ephemeral streams in application materials, and have suggested that certain seemingly ephemeral streams may be jurisdictional.
Application of the proposed rule and definition of key terms like “continuous surface connection” and “relatively permanent” could result in more consistent application requirements and jurisdictional determinations across the federal government, culminating in a reduced regulatory burden and increased regulatory certainty for the regulated community and Clean Water Act practitioners.
But the proposed changes could also create new areas of uncertainty and confusion. Because the changes incorporate the concept of the wet season, they may lend themselves to continued inconsistent application across Corps districts based on varying geography and climates.
While the revisions attempt to resolve the question of what constitutes a continuous surface connection, the revisions could give rise to new questions of interpretation, such as what constitutes the wet season, or how periods of drought factor into determinations of jurisdiction.
Regulated entities should consider commenting on the proposed rule to ensure their input is considered by the agencies, and practitioners should pay close attention to the agencies’ response to public comments when adopting a final definition.
