On Dec. 22, 2022, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army Corps of Engineers (Army Corps) announced a final rule based upon the pre-2015 definition of the “waters of the United States” (WOTUS) delineating the jurisdiction over waterbodies that Congress intended to protect under the Clean Water Act (CWA). This rule was published in the Federal Register on Jan. 18, 2023, at 88 FR 3004, with an effective date of March 20, 2023.1
This final rule included traditional navigable waters as well as those wetlands and surface water impoundments that either were “relatively permanent” or had a “significant nexus” to or effect upon downstream waters or traditional navigable waters. The water bodies included under the “relatively permanent” standard were those permanent, standing or continuously flowing waters connected to paragraph (a)(1) (traditional navigable waters, territorial seas and interstate waters); waters including rivers, lakes, tributaries and certain impoundments; and other additional waters (certain streams, local lakes and wetlands). Those water bodies that do not have permanent, direct or continuous flowing waters to the traditional navigable waters in paragraph (a)(1) would be subject to the CWA jurisdiction if a significant nexus existed and if the waterbody significantly affected the chemical, physical or biological integrity of traditional navigable waters, territorial seas or interstate waters. This definition was created using Justice Anthony Kennedy’s definition from Rapanos.2 An example would be a wetland, although separated by a levee, that had an indirect hydrological connection to and impact upon a permanent stream or water.
The final rule also clarified certain exclusions from WOTUS jurisdiction, including cropland converted prior to Dec. 23, 1985; waste treatment systems; ditches (that did not carry permanent flow of water); artificially irrigated areas; artificial lakes, ponds, reflecting pools or swimming pools; waterfilled depressions (incidental to construction activity or sand/fill/gravel excavation); and swales and erosional features. This final rule was published in the Federal Register and would be effective 60 days following publication.
On March 25, 2023, however, the Supreme Court issued a ruling in Sackett v. EPA, 598 U.S. __ (2023)3 nullifying the “significant nexus” test by requiring a continuous surface connection to the paragraph (a)(1) water bodies. As a result of this ruling, the EPA and the Army Corps published a notice of intent to reissue a revised WOTUS rule to comply with the holdings in Sackett. In addition, the Army Corps suspended all pending Rule 404 certification applications under review until issuance of a revised rule.
On Aug. 29, 2023, the EPA and the Army Corps published a revised final WOTUS rule that eliminated those waters that solely met the significant nexus test and did not have continuous surface connections to paragraph (a)(1) waters, such as adjacent wetlands.4 This has been called the “Conforming Rule.” The purpose of the new rule is to provide clarity to the jurisdiction and application of the CWA in light of the Supreme Court’s ruling in Sackett. However, this guidance is also designed to provide clarity for ongoing infrastructure projects and economic (development) and agricultural activities.
The new final rule removes interstate wetlands from the text of the interstate waters provision; removes the significant nexus standard from tributaries, adjacent wetlands and additional waters (applying to wetlands and streams); defines adjacent to mean having a “continuous surface connection”; and deletes the definition of “significantly affect” from the WOTUS rule.
How does this change impact municipal communities and ongoing development? Upon issuance of the Sackett decision, the Army Corps suspended all pending 404 permit certifications for those dredge and fill projects subject to the jurisdiction of the CWA. However, the Conforming Rule became effective upon publication, so the Army Corps should begin issuing certifications again.
Given the narrowed definition of WOTUS under the revised rules, there may be projects that previously impacted adjacent wetlands or water bodies that met the significant nexus test that are no longer subject to CWA jurisdiction. In addition, this rule change could result in projects seeking development opportunities in lands that were previously protected or subject to the jurisdiction of the CWA that are no longer protected. Fortunately, the state and local regulation of wetlands resources can continue to provide additional protection to these important resources. To that end, there may be greater urgency for cities and towns to adopt wetlands bylaws and regulations to the extent that they have not already done so.
James Steinkrauss is of counsel to the firm of Rath, Young & Pignatelli PC and a member of the Environmental Practice Group providing assistance to public and private clients in the areas of environmental due diligence, environmental permitting, site remediation, wetlands matters and administrative matters with the New Hampshire Public Utilities Commission. Prior to joining the firm, Steinkrauss served as deputy general counsel with the Boston Water and Sewer Commission, a municipal utility providing in-house representation on a wide variety of matters, including environmental, permitting, real estate, litigation defense and other transactions, including work on stormwater utility development.
1. https://www.federalregister.gov/documents/2023/01/18/2022-28595/revised-definitionof-waters-of-the-united-states.
2. Rapanos v. United States, 547 U.S. 715 (2006).
3. https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.
4. https://www.federalregister.gov/documents/2023/09/08/2023-18929/revised-definitionof-waters-of-the-united-states-conforming.