The Scope of Federal Jurisdiction is Expanded Under the Clean Water Act as “Waters of the United States” is Redefined

By Kristen L. Gale and Drew T. Nishioka

On December 30, 2022, United States Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (the “Agencies”) announced the final rule updating the definition of “waters of the United States” as defined in 33 CFR 328.3 and 40 CFR 120.2. As the Agencies stated in the final rule’s preamble, they “have separate regulations defining the statutory term ‘waters of the United States,’ but their interpretations were substantially similar and remained largely unchanged between 1977 and 2015. See, e.g.,42 FR 37122, 37144 (July 19, 1977); 44 FR 32854, 32901 (June 7, 1979). This rule is founded on that familiar pre-2015 definition that has bounded the Clean Water Act’s protections for decades, has been codified multiple times, and has been implemented by every administration in the last 45 years. The pre-2015 regulations are commonly referred to as ‘the 1986 regulations’…” See the final rule preamble I. Executive Summary. 88 FR 3005 (Jan. 18, 2023).

The final rule replaces the 2020 “Navigable Waters Protection Rule” (“2020 NWPR”), which substantially departed from prior rules defining “waters of the United States.” On January 18, 2023, the Final Rule was published in the Federal Register and will be effective on March 20, 2023.

The Final Rule

In the final rule, the agencies construe the term “waters of the United States” to mean:

(1) Traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters”);

(2) Impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”);

(3) Tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”);

(4) Wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); and

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard (“paragraph (a)(5) waters”).

The Relatively Permanent and Significant Nexus Standards

The Agencies’ final rule was designed to assert federal jurisdiction over waters meeting the “relatively permanent standard” in addition to waters meeting the “significant nexus standard.”  See Rapanos v. United States, 547 U.S. 715 (2006).

The “relatively permanent standard” refers to the test to identify relatively permanent, standing or continuously flowing waters connected to paragraph (a)(1) waters, and waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters.

The approach in the final rule would encompass tributaries considered relatively permanent under the 2020 NWPR, as well as those considered relatively permanent under Rapanos₁. The final rule’s requirement that jurisdictional tributaries flow directly or indirectly to downstream paragraph (a)(1) waters or paragraph (a)(2) impoundments implements the Rapanos plurality’s “connect[ion]” requirement. 88 FR 3084 (Jan. 18, 2023).

While the final rule implements the scope of relatively permanent tributaries consistent with the approach in the 2020 NWPR, it does not retain the 2020 NWPR’s requirement that the tributaries contribute surface water flow to a paragraph (a)(1) water in a “typical year.”   88 FR 3085 (Jan. 18, 2023), citing 85 FR 22251 (April 21, 2020).

In evaluating water bodies under the “significant nexus standard,” the agencies will determine whether the water body, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of paragraph (a)(1) waters. The final rule defines the term “significantly affect” for purposes of determining whether a water meets the significant nexus standard to mean “a material influence on the chemical, physical, or biological integrity of” a paragraph (a)(1) water. 33 CFR 328.3 (6), 88 FR 3143 (Jan. 18, 2023). The Agencies identify and specific factors that will be considered when determining whether the functions provided by the water, either alone or in combination, have a material influence on the integrity of a traditional navigable water, the territorial seas, or an interstate water. Id. Although not defined by the final rule, factors used to determine material influence include the distance from a paragraph (a)(1) water; hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow; the size, density, or number of waters that have been determined to be similarly situated; landscape position and geomorphology; and climatological variables such as temperature, rainfall, and snowpack. Id.; See the final rule preamble V. Paragraph (C). Definitions.

Since the 1986 regulations, and particularly regarding “adjacent wetlands”, there has been continuing disputes and litigation over what “waters” meet the significant nexus test.” For “adjacent wetlands”, the Agencies explain the final rule’s scope as follows:

With respect to “adjacent wetlands,” the concept of adjacency and the significant nexus standard create separate, additive limitations that work together to ensure that such wetlands are covered (i.e., jurisdictional under the Act) when they have the necessary relationship to other covered waters. The adjacency limitation focuses on the relationship between the wetland and the covered water to which it is adjacent. Consistent with the plain meaning of the term and the agencies’ 45-year-old definition of “adjacent,” the rule requires that an “adjacent wetland” be “bordering, contiguous, or neighboring” to another covered water. 88 FR 3006 (Jan. 18, 2023); See e.g., the final rule preamble I. Executive Summary; Paragraph (C): Definitions.

Looking Ahead

Parties should carefully evaluate existing discharges and future activities to determine if “waters of the United States” will be impacted, particularly where “adjacent wetlands” may be impacted. However, the outcome of the Supreme Court’s pending decision in Sackett v. EPA, may significantly impact the final rule. The question presented in Sackett is whether the Agencies’ have regulatory jurisdiction over wetlands without a continuous surface water connection based on the “significant nexus” test. An adverse decision in Sackett, could impact the authority of the Agencies to use the significant nexus standard for wetlands and potentially for other water bodies as well.

For landowners, the Agencies provided guidance on how to know when Clean Water Act permits required. This section poses a series of questions for landowners to aid in determining whether the property contains “any waters of the United States.” See the final rule preamble 10. Guidance for Landowners on how to know when clean water acts are required.

The Rapanos plurality interpreted “waters of the United States” as encompassing “relatively permanent, standing or continuously flowing bodies of water,” including streams, rivers, oceans, lakes, and other bodies of waters that form geographical features. 547 U.S. at 739, 742. The plurality noted that its reference to “relatively permanent” waters did “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”   Id.  at 732 n.5 (emphasis in original); see also 85 FR 22289 (April 21, 2020) (citing the same language from the plurality in support of the 2020 NWPR’s interpretation of relatively permanent waters).

_{1 The Rapanos plurality interpreted “waters of the United States” as encompassing “relatively permanent, standing or continuously flowing bodies of water,” including streams, rivers, oceans, lakes, and other bodies of waters that form geographical features. 547 U.S. at 739, 742. The plurality noted that its reference to “relatively permanent” waters did “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”   Id.  at 732 n.5 (emphasis in original); see also 85 FR 22289 (April 21, 2020) (citing the same language from the plurality in support of the 2020 NWPR’s interpretation of relatively permanent waters).}