- Apr 16, 2023
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Yesterday, the Biden administration issued a final rule amending the definition of "waters of the U.S." (WOTUS). This is a big deal because Section 404 of the Clean Water Act (CWA) requires that a permit be obtained for any activity that results in a "discharge of dredged or fill material into waters of the U.S." However, what types of waterbodies qualify as a WOTUS has remained notoriously unclear since passage of the CWA 51 years ago.
Are all types of tributaries, ranging from large rivers to small headwater streams, considered WOTUS? What wetlands count as WOTUS - all of them, or just those that provide functions and services to downstream waters? If the latter, how do you even determine that? These are the questions that different administrations and courts have repeatedly grappled with over the years. In fact, different administrations have made a total of eight different regulatory changes to the WOTUS definition since enactment of the CWA in 1972. Since 2015 there have been more than a dozen regulatory or litigation actions changing which definition of WOTUS applies in one or more states.
By interpreting WOTUS consistent with the recent Supreme Court ruling in Sackett v. EPA, it appears that yesterday's final rule - dubbed the "conforming rule" - largely puts an end to the WOTUS rollercoaster ride. The new rule makes clear that regulated tributaries are limited to "relatively permanent, standing or continuously flowing bodies of water" (i.e., no small ephemeral streams). Wetlands are now only WOTUS if they have a continuous surface connection with a regulated tributary or downstream waterway, the upshot being that many wetlands that previously met the WOTUS definition are now excluded.
The new rule will go into effect once it's published in the Federal Register, which is expected to happen in the weeks ahead. The next chapter will be seeing how the rule is implemented in practice by different Corps District offices and how different administrations approach the rule. Will this rule endure, or will different administrations seek out new opportunities to narrow or broaden WOTUS based on their own policies and whatever legal wiggle room they have?
Are all types of tributaries, ranging from large rivers to small headwater streams, considered WOTUS? What wetlands count as WOTUS - all of them, or just those that provide functions and services to downstream waters? If the latter, how do you even determine that? These are the questions that different administrations and courts have repeatedly grappled with over the years. In fact, different administrations have made a total of eight different regulatory changes to the WOTUS definition since enactment of the CWA in 1972. Since 2015 there have been more than a dozen regulatory or litigation actions changing which definition of WOTUS applies in one or more states.
By interpreting WOTUS consistent with the recent Supreme Court ruling in Sackett v. EPA, it appears that yesterday's final rule - dubbed the "conforming rule" - largely puts an end to the WOTUS rollercoaster ride. The new rule makes clear that regulated tributaries are limited to "relatively permanent, standing or continuously flowing bodies of water" (i.e., no small ephemeral streams). Wetlands are now only WOTUS if they have a continuous surface connection with a regulated tributary or downstream waterway, the upshot being that many wetlands that previously met the WOTUS definition are now excluded.
The new rule will go into effect once it's published in the Federal Register, which is expected to happen in the weeks ahead. The next chapter will be seeing how the rule is implemented in practice by different Corps District offices and how different administrations approach the rule. Will this rule endure, or will different administrations seek out new opportunities to narrow or broaden WOTUS based on their own policies and whatever legal wiggle room they have?
- Location
- United States