The EPA and Corps of Engineers Changed the Definition of Waters of the U.S. per a recent Supreme Court Case

Is the Wetland on your Property still a “Wetland?”

The question is not whether a wetland is still a wetland, but whether a wetland is still a jurisdictional “Water of the U.S. (WOTUS).” under the Clean Water Act. “WOTUS” is a threshold term in the Clean Water Act that establishes the geographic scope of federal jurisdiction under the Act. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers adjusted the definition of “WOTUS” on September 8, 2023, to be consistent with the Supreme Court’s interpretation of the Clean Water Act from the Sackett v. EPA case. Though the “WOTUS” definition changed, the “wetland” definition actually stayed the same. Along with wetlands, many of kinds of waters such a streams, ponds, and lakes may also be considered Waters of the U.S.

The ruling establishes a “continuous surface water test” for determining if a wetland is a jurisdictional Water of the U.S. “WOTUS”. To determine if a wetland is a “WOTUS”, the court put forth a two-pronged test that (1) first establishes if a wetland has a continuous surface water connection to (2) at least a relatively permanent body of water connected to a traditional interstate navigable water.

The scope of the Clean Water Act jurisdiction is narrower than ever. Some sources estimate that more than 58 million acres of wetlands in the U.S. will no longer be protected by the Clean Water Act. Property owners with wetlands or other waters that were previously determined to be “WOTUS” may want to reevaluate whether to have these features reassessed in light of the Sackett decision. AEI is here to help you evaluate options that may be advantageous to consider in light of the rule change.

WOTUS Rule Revision – Simplified

The, EPA and the U.S. Army Corps of Engineers adjusted portions of the definition of “WOTUS” that were deemed invalid under the Sackett v. EPA case. Effective September 8, 2023, the agencies made the following revisions:

  • The “significant nexus standard” has been removed. This “test” was historically used to determine if waters (tributaries, ponds etc.) and wetlands were jurisdictional (Waters of the U.S) by whether they had a material influence on the chemical, physical or biological integrity of another “WOTUS”.  Some examples of waters that were often considered jurisdictional based on having a “significant nexus” to adjacent Waters of the U.S. include prairie potholes, Carolina and Delmarva Bays, pocosins, western vernal pools, and Texas coastal prairie wetlands. At this time, these and many other types of waters may no longer be jurisdictional under the Clean Water Act if they do not possess a “continuous surface connection” to a Water of the U.S.
  • The definition of “adjacent” has been amended. An adjacent water must now have a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right” to be considered jurisdictional. This definition is in contrast to the now obsolete language that considered waters “bordering, contiguous and neighboring” that provide “more than speculative or insubstantial” significant contribution to a (Water of the U.S.) to be jurisdictional. The following types of waters may no longer be considered adjacent jurisdictional waters if they do not exhibit a continuous surface water connection to a “WOTUS”: (1) Waters separated from a tributary by a barrier such as a constructed, dike or barrier, natural river berms, beach dunes, etc. (2) waters located within the 100 year floodplain and not more than 1500 feet from the ordinary high water mark of the tributary, and waters for which any portion is within 1,500 feet from the high tide line of a traditionally navigable water, or (3) interstate waters or the territorial sea or within 1,500 feet of the ordinary high water mark of the Great Lakes.

The conforming September 8, 2023 “WOTUS” Rule does retain all exclusions from the Clean Water Act that were present in the rule published January 18, 2023; for example, artificial ponds or ditches that only drain dry land remain excluded from being considered jurisdictional.

What is the Public Thinking:

Proponents say: Supporters of the new test believe that the ruling will result in a more fair, consistent application of federal wetland regulations, and consider this a profound win for property rights and the constitutional separation of powers.

Opposition thought: There will be wide-spread, irreversible loss of vast acreages of wetlands in the U.S., including impacts to the functions/values provided by wetlands such as sediment trapping, nutrient recycling, pollutant filtering, floodwater retention, runoff storage, water supply contribution, organic matter export, food resource export, essential aquatic habitat, and biodiversity. Opponents consider this a devastating blow to wetlands in the U.S. and expect to see loss of biodiversity, increased flood, loss of plant/animal habitat, and increased pollution. Joining the dissent, conservative Justice Kavanaugh agreed that the new test to determine “WOTUS” jurisdiction would result in loss of these natural resource values.

A Closer Look at What was Amended:

Changes made to the January 2023 Rule Categories
Jurisdictional Category Key Changes to the January 2023 Rule Regulation Text Regulatory Text Paragraph
Traditional Navigable Waters No changes (a)(1)
Territorial Seas No changes (a)(1)
Interstate Waters Removed interstate wetlands from the text of the interstate waters provision (a)(1)
Impoundments No changes (a)(2)
Tributaries Removed the significant nexus standard (a)(3)
Adjacent Wetlands Removed the significant nexus standard (a)(4)
Additional Waters Removed the significant nexus standard; removing wetlands and streams from the text of the provision (a)(5)
Changes made to the January 2023 Rule Definitions
Jurisdictional Category Key Changes to the January 2023 Rule Regulation Text Regulatory Text Paragraph
Wetlands No changes (c)(1)
Adjacent Revised definition to mean “having a continuous surface connection.” (c)(2)
High tide line No changes (c)(3)
Ordinary high water mark No changes (c)(4)
Tidal waters No changes (c)(5)
Significantly affect Deleted definition (c)(6)

A Bifurcated Regulatory Regime

There have been multiple revisions to the (Water of U.S) definition in the past decade, including the “Obama Rule” published in 2015, the “Trump (Navigable Waters Protection) Rule” published in 2020, the “Biden Rule” published in January 2023, and the new, current rule published September 8, 2023. To complicate the complex regulatory environment, 27 U.S. states will use the (Waters of the United States) definition consistent with the pre-2015 regulatory regime (but consistent with the Sackett decision) as depicted in purple below, and 23 states will be regulated under the new rule depicted in green. Although the pre-2015 rules have not been updated to be consistent with the Sackett decision, the Sackett decision is to be incorporated into Jurisdictional Determinations decision-making process by the regulating Agencies.

 

 

 

 

 

 

 

 

 

 

The full text of the pre-2015 and conforming September 8, 2023 (Waters of the U.S.) definitions are included at the end of this document.

Permitting and Regulatory Requirements

Landowners and Developers may want to reassess if the wetlands or surface waters on their property remain a (Water of the U.S.).  Only an Approved Jurisdictional Determination will provide a determination that a surface water is NOT a jurisdictional (Water of the U.S.) and can also be appealed, whereas a Preliminary Jurisdictional Determination cannot.

Permits issued under the Clean Water Act will only be required if a proposed action is to impact a jurisdictional Water of the U.S. Water Quality Certifications are required under Sec. 401 of the Clean Water Act for any impact that may adversely impact the water. National Pollution Prevention Discharge and Elimination System (NPDES) Permits are required to discharge stormwater or pollutants into Waters of the U.S. under Sec. 402 of the Clean Water Act. A Sec. 404 Clean Water Act permit is required to discharge fill material into Waters of the U.S.

Additional State or local permitting requirements may be required to impact wetlands or other surface waters regardless of their jurisdictional status as Waters of the U.S.

What Can We Expect From These Changes?

Less Sec. 401 Water Quality Certifications, Sec. 402 NPDES Permits, and Sec. 404 Permits will be required under the Clean Water Act; however, many states have wetland and surface water regulations that may require permitting and compensatory mitigation, regardless if the water is considered a Jurisdictional Water of the U.S.

Developers or property owners may want to reassess if waters on their property would still be considered jurisdictional under the new “WOTUS” definition. Properties that may have not been financially feasible to develop due to high compensatory mitigation costs in the past may not have the same restrictions if the surface water features on the property are no longer jurisdictional “WOTUS”.

Property owners may fill what has long been considered jurisdictional “WOTUS” on their property, if their State does not have regulations prohibiting doing so. In these cases, the property owner may want to obtain an Approved Jurisdictional Determination from the regulatory agency that states the subject water is not a jurisdictional “WOTUS” before proceeding with impacts.

Despite the bifurcated regulatory regime, the agencies will continue to interpret the definition of Waters of the United States consistent with the Sackett decision, regardless of whether the Jurisdictional Determinations are to be completed under the pre-2015 rule or the new September 8, 2023 conforming rule. The outcome of Jurisdictional Determinations should be functionally similar regardless of which regulatory regime is used to make the determination.

Isolated wetlands, prairie potholes, vernal pools, pocosins, some coastal prairie wetlands, and wetlands located within the 100-year floodplain may lose their status as jurisdictional wetlands. Wetlands that are connected to a lake or river and supplied by subsurface water would not be jurisdictional if they do not exhibit a discrete surface connection to a Water of the U.S.

Although the revision to the “WOTUS” rule did not provide opportunity for public comment, the agencies intend to hold stakeholder meetings to ensure the public has an opportunity to provide the agencies with input on other issues to be addressed.

Q&A Session With NEPA Compliance Specialist

Q: With the revised “WOTUS” definition, what changes should CRE stakeholders anticipate in environmental assessment requirements and due diligence processes when acquiring, developing, or selling properties?

A: Stakeholders may want to request an Approved Jurisdictional Determination for the surface water or wetland on their property as this is the only mechanism by which a determination can be made that a feature is NOT a Water of the U.S. A Preliminary Jurisdictional Determination usually presumes any surface water feature to be jurisdictional and cannot ever be appealed.

Less permits should be required if features are determined to not be “WOTUS”, including the Sec. 401 Water Quality Certification, Sec. 402 NPDES Permit, and Sec. 404 Permit to Discharge Fill Material into a (Water of the U.S.).

Q: Considering the ambiguities in the new rule and potential future litigation, how should CRE stakeholders prepare for potential further changes or clarifications in “WOTUS” regulations? What risk management strategies should be adopted?

A: Some uncertainty remains as to the meaning of “relatively permanent” in terms of the requirement that there be a “relatively permanent surface water connection” to a “WOTUS” for a feature (such as an isolated wetland or ephemeral stream) to be considered a “WOTUS”. This ambiguity can be addressed by requesting an Approved Jurisdictional Determination from the regulatory agency, and filing an appeal if the stakeholder is not in agreement with the decision.

The pre-2015 regulatory definition has not been updated, so some ambiguities remain about how the Sackett decision will be incorporated into the jurisdictional determination process for the states under this regulatory regime. Agencies will be providing further guidance on how they will complete Jurisdictional Determinations under the pre-2015 regulatory regime. Agencies also intend to hold stakeholder meetings to ensure the public has an opportunity to provide the agencies with input on other issues to be addressed as they proceed with developing the anticipated additional guidance.

Q: How might local and state land use planning and zoning regulations be impacted by this revised “WOTUS” definition, and what should CRE stakeholders be vigilant about when planning new developments or expansions?

A: Stakeholders should be aware that local or State regulations may be in place that require permitting and possibly compensatory mitigation regardless if the subject water in questions has been determined to be jurisdictional under the Clean Water Act.

Full text of the “Waters of the United States” September 8, 2023 and Pre-2015 Definition:

September 8, 2023 Regulatory Definition of “Waters of the United States” Changes

33 CFR PART 328—DEFINITION OF WATERS OF THE UNITED STATES

■ 1. The authority citation for part 328 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

  • 328.3 Definitions.

For the purpose of this regulation these terms are defined as follows:

(a) Waters of the United States means: (1) Waters which are:

(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters, including interstate wetlands;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:

(i)Tthat are relatively permanent, standing or continuously flowing bodies of water; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(4) Wetlands adjacent to the following waters

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or

(iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:

(i) T that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section:

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.

(b) The following are not ‘‘waters of the United States’’ even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:

(1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;

(2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

(3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and

(8) Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

(c) In this section, the following definitions apply:

(1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

(2) Adjacent means having a continuous surface connection bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are ‘‘adjacent wetlands.’’

(3) High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

(4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

(5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

(6) Significantly affect means a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) of this section will be assessed and the factors identified in paragraph (c)(6)(ii) of this section will be considered:

(i) Functions to be assessed:

(A) Contribution of flow;

(B) Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);

(C) Retention and attenuation of floodwaters and runoff;

(D) Modulation of temperature in waters identified in paragraph (a)(1) of this section; or

(E) Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section;

(ii) Factors to be considered

(A) The distance from a water identified in paragraph (a)(1) of this section;

(B) Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;

(C) The size, density, or number of waters that have been determined to be similarly situated;

(D) Landscape position and geomorphology; and

(E) Climatological variables such as temperature, rainfall, and snowpack.

See https://www.epa.gov/wotus for additional information. Contact wotus-outreach@epa.gov with any questions.

Pre-2015 Regulatory Definition of “Waters of the United States

The pre-2015 regulations are commonly referred to as the 1986/1988 regulations, but the agencies note that the 1986/1988 regulations have largely been in place since 1977 and were also amended in 1993 to add an exclusion for prior converted cropland. The text of EPA’s pre-2015 definition of “waters of the United States at 40 CFR 230.3(s) is quoted below.

40 CFR 230.3(s) The term waters of the United States means:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
    1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
    2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    3. Which are used or could be used for industrial purposes by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under this definition;
  5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
  6. The territorial sea;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

See https://www.epa.gov/wotus for additional information. Contact wotus-outreach@epa.gov with any questions.

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References:

Earth Justice: What Does Sackett v. EPA Mean for Clean Water? – Earthjustice https://earthjustice.org/article/what-does-sackett-v-epa-mean-for-clean-water

EPA Website: https://www.epa.gov/wotus

Foley & Lardner LLP: Wetlands No More? U.S. Supreme Court Limits Federal Regulation of Wetlands in Sackett v. EPA Decision | Foley & Lardner LLP https://www.foley.com/en/insights/publications/2023/05/us-supreme-court-limits-fed-regulation-wetlands

Timmons Group: Navigating the Potential Impact of Sackett v. Environmental Protection Agency – Timmons Group. https://www.timmons.com/2023/08/navigating-the-potential-impact-of-sackett-v-environmental-protection-agency/

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