Major Changes Underway in Clean Water Act “Navigable Waters” Regulations, With Supreme Court Review of Wetlands in the Works
New Regulations Propose Return to Historic Navigable Waters Definition, But with Important Shifts
US EPA and the Army Corps of Engineers have proposed new Clean Water Act regulations defining “navigable waters” (aka “waters of the United States” or WOTUS), the fourth such set of new regulations in seven years. This proposal returns to the framework of long-standing regulations dating to 1986, but with important limits on the “other waters,” “tributaries,” and “adjacent wetlands” categories. Details on these changes are provided in a chart and analysis below. Public comment on the proposal is open through February 7, 2022. Meanwhile, the Supreme Court has decided to hear Sackett v. EPA (in which Briscoe Ivester & Bazel is co-counsel for petitioners the Sacketts), an important wetlands enforcement case that may set tighter limits on which wetlands are regulated by the Clean Water Act.
Background
Many of us are old enough to remember having a fairly good handle on how broadly the Environmental Protection Agency and the United States Army Corps of Engineers extended their Clean Water Act authority. While not quite claiming “any wet spot,” the agencies took an expansive view that went high into the watershed above actually navigable rivers and lakes. After initial developments in the 1970s, this view took what looked like permanent form in the substantially identical regulations issued by the agencies in 1986 and 1988, as elaborated on (always outward, ever outward) in subsequent guidance published in the federal register.
While the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. Army Corps put some ostensible limits on the 1986 regulations (by striking down the Migratory Bird Rule, one of the elaborated interpretations of those regulations), the agencies predictably took a narrow view of the decision and in its wake occasionally disclaimed authority over certain isolated water bodies.
The real change started with the Court’s 2006 fractured decision in Rapanos v. United States, in which four justices would have held that “navigable waters” (the term used interchangeably with “waters of the United States” and interpreted by the 1986 regulation) extended only as far as relatively permanent and continuously standing or flowing bodies of water which an ordinary person would describe as lakes, rivers, or streams, and those shoreline wetlands that directly intermingled with such water bodies.
Justice Kennedy concurred that the 1986 regulations went too far, but rejected the “relatively permanent” and “intermingled” standards of Justice Scalia’s plurality opinion, instead opining that any water body (considered alone or alongside others similarly situated) with a “significant nexus” to downstream regulated waters was also regulable.
Since Rapanos, the agencies, lower courts, and public have struggled to discern where the boundary of Clean Water Act authority lies, “feel[ing] their way on a case-by-case basis.” The agencies issued guidance in 2007 and then revised it in 2008, considered but then abandoned new and narrow regulations during the waning days of the second Bush Administration, considered new guidance in 2014 which then led to an ill-fated 2015 rulemaking that read the significant nexus test as broadly as possible; then repealed the 2015 regulation in 2019 (at which time the 1986 regulations were readopted along with the 2008 guidance); then issued a new and much narrower regulation in 2020; only to then announce the intention to revisit that regulation in 2021.
This past December the agencies proposed another new regulation defining “navigable waters” (waters of the United States or WOTUS, if you insist) which looks and feels a lot like it goes back to the 1986 regulations. But the proposal has some significant differences which are worth paying close attention to, summarized below. Comment on the current proposal remains open until February 7, 2022.
How The New Proposal Tracks the 1986 Regulations
This chart shows the 1986 regulation and the 2022 proposal side by side, and the non-highlighted text is essentially identical between the two definitions. Portions unique to each are highlighted in yellow for the 1986 regulation and in blue for the 2022 proposal.
To help appreciate the differences between the two, it is useful to start with the very similar overall structure of both. Seven categories of waters are listed in each, which I describe with the short hand terms (1) “navigable waters”, (2) interstate waters, (3) “other waters,” (4) impoundments, (5) tributaries, (6) territorial seas, and (7) wetlands. Waters in several of these categories are then related to each other in different ways (depending on which version of the regulation you are looking at) to “daisy chain” upstream from actually navigable rivers and lakes up the watershed to smaller and remoter water bodies. They key to understanding the new proposal is how it uses the same categories as the 1986 regulation, but connects the various categories to each other in much more limited ways. The result is that under the new proposal, more waters will be regulated than under the 2020 regulation (which the proposal intends to replace), but also substantially less than under the 1986 regulations.
Let’s start with what does not change. Three categories (numbers 1, 2, and 6 in each version) are identical: “traditionally navigable waters,” interstate waters, and the territorial seas. In the 1986 regulation, these three categories are more or less equal to the other four. But in the current proposal, these three categories are defined as “foundational waters.” This reflects a somewhat different approach in current agency interpretation. Where the 1986 regulation (and practice under it) saw almost all waters as within the agencies’ authority, with the seven categories largely a laundry list of reasons why that might be true as to any particular site, the 2022 proposal starts with the most obviously and unconditionally regulated water bodies as “foundational,” and then builds out from there. Outside of the three categories of “foundational waters” in the proposal, the conditions and limitations start accumulating.
What is New in the Proposal?
“Other waters”
The first big difference comes in category (3), “other waters.” Both versions provide a list of examples (“intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds”) that are then limited by a general principle.
In the 1986 regulation, that general principle is that “other waters” are regulated if they have any of the widely understood connections to interstate commerce. This provision is the origin, for example, of the Migratory Bird Rule struck down in SWANCC. Migratory birds (particularly game bird species), so the unsuccessful argument went, cross state lines and thus their use of “other waters” implicated interstate commerce. Significantly, SWANCC rejected an interpretation of the Clean Water Act as exercising Congress’ commerce power to its outermost limits.
The 2022 proposal replaces the broad commerce clause condition on “other waters” with a narrower disjunctive test based on the two Rapanos opinions discussed above. So, “other waters” under category 3 in the new proposal are only regulated if they meet either the Scalia “relatively permanent” test or the Kennedy “significant nexus” test.
And, the 2022 proposal further limits the regulation of “other waters” by limiting what other waters they may be connected to through the Rapanos tests. “Relatively permanent” “other waters” are regulated only if they flow to “foundational waters” (i.e. traditional navigable waters, interstate waters, or the oceans), or to “relatively permanent” tributaries (see discussion of tributaries below). “Significant nexus” “other waters” are regulated only if the significant nexus is with “foundational waters.”
(Readers should also be aware that there are some differences between those tests as stated in the Rapanos opinions and how they are formulated in the proposal.)
“Impoundments”
Category (4) is impoundments. The text of these categories is almost identical in both the 1986 regulation and its proposed 2022 update. The one exception: the 1986 regulation includes impoundments of any water that would itself fall under one of the other six categories. But the 2022 proposal excludes impoundments of “other waters.”
“Tributaries”
Category (5) is tributaries. Here again there are some important limitations in the 2022 proposal on the class of tributaries regulated by the 1986 rule. Under the 1986 regulation, all tributaries of waters in categories (1)-(4) (traditionally navigable, interstate, other waters, impoundments) were regulated without further condition.
The 2022 proposal limits tributaries to those that flow only to “foundational waters” ((1), (2), and (6)) plus impoundments (4)). So, it adds tributaries that flow directly to the oceans (as the correction of an oversight in earlier versions) but removes tributaries of “other waters.”
This is another example of the significant reduction in agency authority arising from the 2022 proposal’s “other waters” category. So far, that category itself is reduced by substituting the narrower Rapanos tests for the very broad Commerce Power test in the 1986 regulations and excluding “other waters” whose significant nexus is not to “foundational waters,” and then removing impoundments of and tributaries to “other waters” from regulation entirely.
“Adjacent Wetlands”
This brings us to the changes in the final category, wetlands (7). The 1986 regulation universally regulated all wetlands adjacent to any other water in any other category. The 2022 proposal limits regulation of adjacent wetlands to three types:
- those adjacent directly to “foundational waters,”
- those adjacent and with a continuous surface connection to “relatively permanent” impoundments or tributaries, or
- those adjacent to any impoundment, or to any regulated tributary that is not itself “relatively permanent,” and which wetlands “significantly affect” “foundational waters.”
The new limitations on tributaries and adjacent wetlands are somewhat more complex than the other limitations in the proposal, and so readers should closely consult the chart and the preamble to the regulatory proposal as well to ensure a full understanding of which tributaries and adjacent wetlands would be regulated under the proposal.
This proposal signals a return, after several years of regulatory turmoil, to a relatively stable framework that existed under the 1986 regulations for determining the reach of Clean Water Act regulation. That said, the ways in which the proposal updates the 1986 framework are important to pay close attention to. And of course, the agencies will be taking and considering public comment, and the final rulemaking may change from the proposal. It is not yet clear how soon the agencies hope to complete the rulemaking. And as with each of the three previous rulemakings on this subject since 2015, one should expect significant litigation over the matter.
Supreme Court to Weigh in on Adjacent Wetlands
While the agencies consider public comments on this proposal and decide what to do in the final rulemaking, the Supreme Court of the United States has decided to hear a long running wetlands enforcement case arising out of Idaho. In 2007 the EPA issued an administrative compliance order to Mike and Chantell Sackett after determining that the Sacketts’ vacant lot in a largely built out neighborhood near Priest Lake is an adjacent wetland under the Rapanos “significant nexus” standard. 15 years of litigation have ensued, with the Supreme Court already ruling once in the case that the couple could challenge the compliance order in federal court.
The Supreme Court will decide whether or not to retain the “significant nexus” test from the Rapanos decision. This decision could have major ramifications for all aspects of administration of the Clean Water Act, including both permitting and enforcement. A narrow reading of the Act by a majority of the Court along the lines of Justice Scalia’s plurality opinion in Rapanos would limit Clean Water Act regulation to those wetlands immediately alongside other regulated navigable waterbodies.
The case is expected to be heard by the Court in October or November of this year, with a decision likely early in 2023. It is too early to say how the case will affect the ongoing rulemaking.
*As a reminder of the disclosure at the beginning of this article, Briscoe Ivester & Bazel, LLP, is co-counsel for the Sacketts before the Supreme Court in Sackett v. EPA.
Tony Francois
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Telephone: (415) 402-2700
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