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EPA & Corps of Engineers Revise WOTUS Definition

Jeff Hannapel

On January 18, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) published a final rule that revised the definition of waters of the United States (WOTUS). 88 Fed. Reg. 3004. The rule is the first phase of another repeal-and-replace effort for the WOTUS rule that revives and codifies the pre-2015 definition of WOTUS—updated to reflect consideration of past U.S. Supreme Court decisions, the science, and the technical expertise of EPA and the Corps. The new rule is scheduled to become effective March 20.

In fall 2022, the U.S. Supreme Court heard oral argument for a WOTUS case, Sackett v. EPA, and is expected to issue a decision that will, hopefully, provide clarity on the scope of the definition of WOTUS. Following the Court’s decision, EPA and the Corps are expected to issue the second phase of the WOTUS rulemaking in November that will provide a durable, long-term approach to the definition of WOTUS. This regulation is important to metalcasters because activities such as construction, site improvement/management, and water discharges and runoff at metalcasting operations that may impact waters of the U.S. could trigger the need for federal permits from EPA or the Corps.

Jurisdictional Waters in Final Rule 

The rule’s definition of WOTUS provides jurisdiction over waterbodies that Congress clearly intended to protect under the Clean Water Act (CWA). These jurisdictional waters would be subject to permitting requirements pursuant the CWA. The final rule includes the longstanding categories for: 

•  Traditional navigable waters, the territorial seas, and interstate waters. 
•  Jurisdictional impoundments of “waters of the United States.”
•  Jurisdictional tributaries. 
•  Jurisdictional adjacent wetlands. 
•  Intrastate lakes and ponds, streams, or wetlands not identified above that meet the rule’s jurisdictional criteria. 

The new rule makes no changes to the definitions of “wetlands” and “adjacent” from previous WOTUS rules. The “significant nexus” approach is, however, used in the new rule, but it is limited by several criteria to determine when an adjacent wetland is subject to CWA jurisdiction. A wetland is considered adjacent to a jurisdictional water and subject to regulation under the WOTUS rule under any of the following circumstances.

•  Wetland has unbroken surface or shallow subsurface connection to a jurisdictional water.
•  Wetland is separated from jurisdictional water by human-made dikes, barriers or natural landforms such as river berms or beach dunes.
•  Wetland’s proximity to a jurisdictional water is reasonably close such that the wetland has significant effects on water quality and the aquatic ecosystem of the jurisdictional water.

The rule provides no bright-line test such as a specific distance to a jurisdictional water to determine if wetland is adjacent to a jurisdictional water, but rather depends on site-specific factors. EPA and the Corps indicate that the new rule provides regulatory certainty because it retains the definitions that have been in place, and they will continue to interpret and implement them as they have for decades. Critics of the rule argue that the retained definitions and agency interpretations have led to the confusion and uncertainty surrounding the WOTUS rule for decades.

Exclusions in the Final Rule 

The final rule codifies two longstanding exclusions from the definition of WOTUS in regulatory text: (1) Prior converted cropland that is available for agricultural commodity production, including uses such as crop production, haying, grazing, agroforestry, or idling land for conservation uses. (2) Waste treatment systems, including treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act. 

The final rule also specifically includes six additional exclusions from the definition of WOTUS to provide more regulatory certainty. 

•  Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water.
•  Artificially irrigated areas that would be dry without ongoing irrigation. 
•  Artificial lakes or ponds created in dry land that are used exclusively for agricultural purposes.
•  Artificial reflecting pools or swimming pools and other small ornamental bodies of water created by excavating or diking dry land.
•  Waterfilled depressions in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel.
•  Swales and erosional features (e.g., gullies, small washes) that are characterized by low volume, infrequent, or short duration flow. 

Opponents of the new rule condemn it as regulatory overreach, claiming that it will cause further uncertainty and confusion on the scope of WOTUS and should not have been issued until after the Supreme Court’s decision in Sackett. Critics also assert that the new rule will likely be subject to a legal challenge and could be overturned by the courts. The states of Texas and North Dakota and several trade groups representing agriculture, mining, petroleum, general contractors, home builders, and realtors have already filed lawsuits to stop the implementation of the new rule.  Proponents of the rule state that it was needed to restore longstanding, bipartisan protection for waters under the CWA.  

Unless the courts provide injunctive relief to stop the rule, it appears that the new rule will be a temporary placeholder until the Supreme Court issues its decision in Sackett, and EPA and the Corps issue the second phase proposed rule in November 2023. Accordingly, the requirements for WOTUS will remain uncertain, and in need of further clarity from the courts and regulatory agencies.     

Click here to view the column in the February 2023 Modern Casting digital edition.