EPA and Army Corps of Engineers issue summary report on consultation with state and local governments
The Environmental Protection Agency (EPA) and Army Corps of Engineers publicly posted a summary report on consultations the organizations had with state and local governments over the organizations’ proposed changes to the definitions of “waters of the United States.”
BY WALKER LIVINGSTON, ESQ | JAN 18, 2023 7:21 PM EST
Regulatory background
- The Clean Water Act (CWA) was passed in 1972 and established the basic structure for regulating the discharges of pollutants into “ waters of the United States.” The CWA makes it unlawful to discharge any pollutant from a source into “navigable waters” unless the discharger receives a permit from the Environmental Protection Agency (EPA). The EPA’s National Pollutant Discharge Elimination System (NPDES) governs the permit scheme for the U.S. The appropriate definition of waters of the United States, or WOTUS, has been consistently litigated since the Clean Water Act was passed in 1972, more than 50 years ago.
- In 2015, the EPA and the Army Corps of Engineers (the Corps) published the 2015 Clean Water Rule, (Rule) aimed at expanding the definition of WOTUS by more clearly defining the tributaries and adjacent waters envisioned to be covered under the Rule. In addition, the Rule included numerous other changes, such as protecting “regional water treasures” and reducing the categories of waters subject to case-by-case analysis of coverage under the CWA.
- In June 2017, the EPA and the Corps proposed to rescind the 2015 Clean Water Rule. The EPA and the Corps announced an intent to create a new rule based on an interpretation of the CWA which would pare down the definition of what was covered by the Rule. In 2018, after significant litigation through the courts, the EPA finalized a rule to delay the implementation of the 2015 Clean Water Rule. The Agency and the Corps finally repealed the rule in September 2019 and published a new rule, the Navigable Waters Protection Rule (NWPR), on April 21, 2020 (effective June 22, 2020). The NWPR took a narrower view of what waters would be covered under the CWA compared to the 2015 Clean Water Rule, and excluded groundwater and certain activities occurring close to covered waters where contaminants may wash into the waters.
- On August 30, 2021, the United States District Court for the District of Arizona threw out the Navigable Waters Protection Rule (NWPR). In its arguments, the EPA had asserted that there was the potential for serious environmental harm if the NWPR was left in place. The court, recognizing “fundamental, substantive flaws” in the NWPR that could not be remedied without rescinding it, decided to both send the rule back to the EPA and rescind its effectiveness during the EPA’s review. The court stated that the EPA had erred in enacting the NWPR and that it would not keep the NWPR in place during the review, as the Agency was likely to change the definition of WOTUS after the court remanded the NWPR.
- On November 18, 2021, the EPA proposed a rule revising the definition of WOTUS by reviving the pre-2015 definition of WOTUS and putting the rule back into place, noting that it was searching for a “durable” definition of WOTUS. The proposal then continued with significant outreach efforts by the EPA to determine the effects of the new WOTUS rule on communities around the U.S.
- The finalized rule, published in the Federal Register on January 18, 2023, provides the EPA and the Corps jurisdiction over traditionally navigable waters, territorial seas, and interstate waters. In addition to these waters, tributaries and adjacent wetlands are covered via two standards, the “significant nexus” test and the “relatively permanent” test. The “significant nexus” flows from the Supreme Court’s decision in Rapanos v. United States, a 2006 case that applied a test to determine whether the potentially covered water body significantly affected the chemical, physical, or biological integrity of an already-covered body of water. If the potentially covered body did, it had a “significant nexus” to the already-covered body and would therefore be covered by the Clean Water Act. The “relatively permanent” test includes bodies of water that are relatively permanent, standing, or continuous with a connection to already-covered bodies of water.
- The rule also excludes several important types of waterbodies from the definition of WOTUS, including wetlands converted to cropland before 1985, artificially irrigated areas or lakes or ponds, ditches, and erosional features.
Summary Report
- In December 2021, the EPA released the Summary Report of Federalism Consultation for the Proposed Rule: Revised Definition of “Waters of the United States,” which formed the basis for outreach efforts by the EPA to state and local governments for federalism consultations.
- On January 18, 2023, the EPA and Corps posted the Summary Report on Consultation with State and Local Governments for the Rule: Revised Definition of “Waters of the United States,” an update to the December 2021 summary report on federalism. The report details the EPA’s outreach and consultation efforts in the process of releasing the rule. The report describes the wide range of comments received from state and local governments during the WOTUS rule’s comment period and provides an argument for why the final rule does not implicate federalism concerns.
- One of the focuses of the Report were specific implementation suggestions by state and local governments for the new WOTUS rule. Although state and local governments were often split on the organizations’ plans for the new WOTUS rule as well as the pre-2015 regulatory scheme, most agreed that a proper WOTUS definition should maintain a balance between federal and state jurisdiction, protect important waters while also promoting agriculture and industry, and appropriately exclude certain waters where needed. Many of the commenters also focused on the use of a “typical year” (e.g., one with an average amount of rainfall, flooding, and flow) in determining coverage of certain waters.
- State and local governments also requested simplified and streamlined agency jurisdictional determination and permitting processes via the new rule. The governments argued that the current process to receive a permit is already lengthy, and that additional jurisdictional expansion via a rule would only further extend this wait time.
- Almost all commenters, including state and local governments, emphasized the need for clarity and certainty in any revised definition of WOTUS. The constant modifications to the definition of WOTUS from changing presidential administrations and litigation over EPA interpretation caused frustration among many parties, contributing to a sort of “regulatory whiplash” that created uncertainty in developing new projects that may require CWA permits.
- Additionally, the EPA focused on the comments based on its definition of wetlands covered by the rule. Litigation over covered wetlands has consumed much of the WOTUS-related court cases, including several that have gone to the Supreme Court. Wetlands proved to be a significant inflection point for commenters, with many supporting an increase in covered wetlands under the new WOTUS rule, in addition to several commenters requesting that wetlands not be included at all in the definition of WOTUS or limiting covered wetlands to those which cannot be distinguished from a neighboring covered water.
- In a final section, the EPA and Corps laid out its argument that the new WOTUS rule will not have federalism implications. The EPA and the Corps assert that the rule will not have “substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government.” If the rule is challenged in court, any petition will likely challenge this facet of the rule, arguing that the rule will have a substantial effect on states’ powers and relationship with the federal government.
Implications of the Report
- The EPA and the Corps are cognizant of the litigious history of WOTUS and the distinct chance that the new rule will attract litigation seeking its revision or removal. Therefore, it is clear how much time and effort the EPA and the Corps put into clearly laying out the arguments for and against their interpretation of the CWA and the resulting rule. The EPA’s responses to comments (section: Public Comments Received and Agency Responses) are significantly more in-depth than traditional responses to comments that the EPA releases. Additionally, the responses to comments include significant legal references to a bevy of Supreme Court and other cases supporting its position, which will likely provide a basis for the EPA if the rule is challenged in court.
- The rule, finalized several months before the Supreme Court releases its opinion in Sackett v. EPA, acts as the EPA’s and the Corps’ final step towards convincing the Supreme Court to accept its interpretation of the rule. However, as the EPA and the Corps realize, the current court may not accept the revised version of the rule. Consequently, the EPA and the Corps have already planned a second rule for late 2023 that may act as “clean up” for WOTUS in the wake of the Supreme Court’s decision.
Contains previous research by Walker Livingston and Patricia Iscaro.
To contact the author of this analysis, please email Walker Livingston ( [email protected])
To contact the editor of this analysis, please email Patricia Iscaro ( [email protected])
Key Documents and Dates
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