First, we had the U.S. Supreme Court ruling, and now there’s a new rule to define waters of the U.S. (WOTUS).  In response to the recent U.S. Supreme Court decision, Sackett v. EPA, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) issued a direct final rule on September 8 to define WOTUS to determine regulatory jurisdiction pursuant to the Clean Water Act (CWA).  Even though the rule was issued without an opportunity for public comment, it does provide a significantly narrower definition of WOTUS and more clarity on what constitutes a WOTUS under the CWA, but additional clarification may still be needed.

In Sackett, the Supreme Court rejected the “significant nexus” standard (which imposed CWA jurisdiction on areas that had a broadly defined surface or subsurface connection to navigable waters) and ruled that wetlands adjacent to traditional navigable waters would be subject to CWA jurisdiction and permitting only if they were a continuous surface connection; in other words, only if there is no clear demarcation between the navigable water and the wetland. Consistent with the Supreme Court decision, the new rule removes the “significant nexus” standard from the definition of WOTUS for tributaries, adjacent wetlands, and other additional areas. This new rule provides the most narrow WOTUS definition that federal agencies have used, even narower than the definition from the Trump administration.

Despite this promising development, critics of the new rule claim the terms in the regulatory language to replace the “significant nexus” standard (i.e., “relatively permanent” and “continuous surface connection”) lack clear definitions and need further clarification. This is particularly important because parties must still obtain from EPA and the Corps an approved “jursdictional determination” in order to develop, without a CWA permit, property that may be adjacent or near traditional navigable waters. In many states, this could include proposed beneficial uses of foundry sand. Without clear regulatory definitions, the federal agencies may have more interpretive flexibility with the “relatively permanent” test than the Supreme Court intended and exceed its authority under the CWA by extending jurisdiction beyond streams, oceans, rivers, and lakes.

Some states as well as industry and agricultural groups have been critical of the use of the “good cause” provision to issue a direct final rule without an opportunity for public comment. EPA and the Corps claim it was necessary to ensure a WOTUS rule was in place that was consistent with the Supreme Court ruling to avoid further confusion on what constitutes a WOTUS. In addition, others claim that EPA and the Corps have still exceeded their authority under the CWA and the rule fails to comply with the Supreme Court’s direction in Sackett, because the lack of clear definitions and clarity in the rule provide EPA and the Corps with too much flexibility in making jurisdictional determinations. This would also most likely lead to more uncertainty for landowners as jurisdictional decisions will continue to rely heavily on a case-by case basis.

Even if these claims would be sufficient for a successful legal challenge to the rule, the critical question remains: how, if at all, should a legal challenge be pursued? Any effort to stay or revoke the new rule could result in replacing the most narrow definition of WOTUS ever used with a previous, broader version of WOTUS that could subject many more properties to CWA jurisdiction. Foregoing any legal challenge may be good in the short term, but if the rule is left unchecked it could allow EPA and the Corps more authoririty than the Supreme Court intended due to the lack of clarity provided in the new rule.

While the new rule does not resolve all issues with the WOTUS rule and regulatory uncertainty remains, it does represent a significant positive development in the definiton of WOTUS. The number and nature of the inevitable legal challenges to the rule will most likely determine both short-term and long-term impacts of the rule. Metalcasting operations can, for the time being, take solice in the narrower definition of WOTUS but may still have to rely on case-by-case decisions until further clarification can be developed. Uncertainty and litigation appear to be the only constants with WOTUS!