The hits just keep on coming for the Waters of the United States (WOTUS). So many, in fact, maybe we should start a blog just for WOTUS: ‘What’s Up with WOTUS?’
In today’s blog, we’re going to discuss the proposed WOTUS rule to take us back to the Clean Water Act regulatory world pre-2015, which almost seems like a lifetime ago after the past couple of years. But first, for those of you just tuning in, let’s cover the WOTUS highlights from the past year.
1. Background:
As most of you who work in the federal environmental field know, on January 25, 2021, President Biden issued Executive Order 13990 “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” Executive Order 13990 directed federal agencies to review their rule defining WOTUS.
The 2020 Navigable Waters Protection Rule (2020 Rule), which we discussed in the May 2021 blog, was clearly in the sights of Biden’s Executive Order 13990, and did not have long to last in his administration. As we discussed in our July 2021 blog, the U.S. Environmental Protection Agency (EPA) announced in July that the 2020 Rule would be repealed and replaced, “encouraged” to proceed at a quicker pace than originally planned by the decision of a Massachusetts Federal District Court decision to remand the 2020 Rule.
EPA’s schedule to propose a new WOTUS rule was once again “hastened” by an Arizona Federal District Court decision in August, Pascua Yaqui Tribe v. EPA (“Pascua Yaqui”). In Pascua Yaqui, the district court agreed with the Pasqua Yaqui Tribe’s argument that the 2020 Rule disregarded established science and the advice of the agencies’ own experts in redefining WOTUS, especially excluding ephemeral waters from the definition of WOTUS. EPA acknowledged this deficiency during litigation. Rather than just remand the case, the court also vacated the 2020 Rule, which led EPA to repeal and replace the 2020 Rule.
On November 18, 2021, EPA Administrator Michael Regan signed the EPA proposal to revert the WOTUS definition back to a broader definition, similar to the pre-2015 definition change. The proposed change re-defines WOTUS as well as reinstates the significant nexus determination. The proposed change would protect countless small streams, wetlands, and other waterways that are vulnerable to pollution from development, industry, and farming.
On December 7, 2021, the U.S. Army Corps of Engineers, Department of Defense, and EPA issued a proposed rule for the change of the definition of WOTUS. It is proposed to interpret WOTUS to mean the “waters defined by the longstanding 1986 regulations with amendments to certain parts of those rules to reflect the agencies’ interpretation of the statutory limits on scope of the ‘waters of the United States’ and informed by Supreme Court case law.” Find the complete proposed rule here. Comments on the proposed rule are being accepted until February 7, 2022.
2. The Bottom Line:
The proposed WOTUS rule will resurrect 1) adjacent wetlands that are “bordering, neighboring, or contiguous” to a tributary of a navigable water, and 2) ephemeral streams. There is no bright line test for determining adjacent wetlands, which are in ‘close proximity’ to a tributary. Distance plays a part, but there is no magic number of feet or meters to a tributary. Be that as it may, it is a very good idea to describe in detail the topography, location, and evidence of any hydrologic connection of the wetland to or from the tributary. Also, any evidence, or lack thereof, of the volume of water flow, duration, and frequency of the tributary that flows to traditional navigable water should be documented in the record.
EPA/U.S. Army Corps of Engineers Questions and Answers Regarding the Revised Rapanos & Carabell Guidance, December 2, 2008, which can be found on EPA’s webpage, is useful for explaining what “waters” require a significant nexus determination. However, some of us who worked on delineations under this guidance found it falling short on explaining how to determine significant nexus “close proximity” wetlands, i.e., “bordering, neighboring, contiguous.” Best professional judgement along with documentation is the most reliable approach for a significant nexus determination.
Ephemeral streams have their own set of challenges. Very often, they are desert washes that flow only after a heavy rain event, typically in the southwest United States. Any evidence of flow, duration, and frequency for the ephemeral steam should be included in the record. Any evidence, or lack thereof, of a bed, channel, bank, or a feature resembling an Ordinary High Water Mark (OHWM) observed during a site visit(s) should also be recorded in the record. The U.S. Army Corps of Engineers definition of OHWM at 33 CFR 328.3(e) is a useful reference in these cases.
3. Looking Ahead:
It’s never a dull moment when it comes to WOTUS jurisdiction. The proposed rule intends to incorporate the water quality friendly significant nexus test under Rapanos into the regulations as one test for WOTUS jurisdiction. Consistent with Rapanos, the plurality’s relatively permanent/continuously flowing waters test will be incorporated into the regulations as well as other bases of WOTUS jurisdiction.
If the past two administrations’ WOTUS are any indication, there will certainly be no end of controversy in this process. In the meantime, stay tuned for more updates for ‘What’s Up with WOTUS’ (With a nod to Kenan Thompson’s SNL ‘What Up With That?’)
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