January 18, 2023
To kick off 2023, the U.S. Environmental Protection Agency and the Army Corps of Engineers have teamed up to strengthen the core role of the federal Clean Water Act: which bodies of water will qualify as “waters of the United States.” This definition is important to all landowners and developers because if their land contains waters of the United States, the Clean Water Act’s federal protections are triggered, thereby requiring additional scrutiny and protocols for any development on that land. On December 30, 2022, the agencies published their Final Rule, going back to what the rule was before 2015 to build on the Final Rule’s updated standard.
Historically, this rule has been extremely controversial, spanning several presidential administrations and experiencing back and forth pulls of being strengthened and weakened in battles over the scope and definition of the Rule throughout countless public hearings and court cases. The constant back and forth created untold amounts of frustration and uncertainty for landowners, developers, consultants, government agencies, and attorneys – anyone having to navigate the impossible waters of the Clean Water Act itself. According to the EPA the Final Rule used the best available science and extensive public comment to create a definition in support of public health, environmental protection, agricultural activity and economic growth.
Now, this new standard has been adopted, and notably, just before the Supreme Court is set to issue its decision in Sackett v. EPA, a case squarely examining the scope of the definition for waters of the United States. Codifying two tests established by the Supreme Court in prior case law, the Final Rule triggers the protections of the Clean Water Act if a waterbody satisfies either the relatively permanent test or the significant nexus test. The “significant nexus” test will “identify waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters[.]” Final Rule at p. 9. To have a significant effect there must be “a material influence” on traditional navigable waters, the territorial seas, or interstate waters. Regionally specific factors will also be considered when determining if a body of water falls under the Clean Water Act. Some of these factors are the contribution of flow, retention and attenuation of floodwaters and runoff, the establishment of habitat and food resources for aquatic species in other waters of the United States, and landscape position.
For example, with respect to wetlands, the Final Rule finds the following to be waters of the United States: 1. wetlands adjacent to traditional navigable waters, territorial seas, and interstate waters; 2. wetlands adjacent to and with a continuous surface connection to a relatively permanent tributary or impoundment of waters of the United States; and 3. wetlands adjacent to impoundments of waters of the United States or jurisdictional tributaries when the wetlands meet the significant nexus test.
Cropland converted from wetlands prior to the Clean Water Act and waste treatment systems will remain excluded from the Final Rule. Ditches dug entirely in and draining only dry land, that do not carry a permanent water flow, plus low, hollow and erosional areas with low volume, infrequent or short duration water flow are also excluded.
The Final Rule will take effect 60 days after its January 18, 2023 publication in the Federal Register. To see the Final Rule, click here.