During the holidays, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a proposed redefinition of the Waters of the United States (WOTUS) under Section 401 of the Clean Water Act (CWA). The rule would expand the EPA and Army’s regulatory oversight to include traditionally navigable waters, territorial seas, interstate waters and, “upstream water resources that significantly affect those waters.” According to the two agencies, the revised rule is based on definitions that were in place before 2015. Farming groups, oil and gas producers, and real estate developers criticized the regulations as overbearing and burdensome to business, and, in particular, the ruling has the potential to affect natural gas infrastructure projects. It also would exert federal control over lands not owned by the federal government.
The ruling comes as a surprise since the U.S. Supreme Court is to decide on a case this session called Sackett v. Environmental Protection Agency that challenges the government’s determination that a wetland on private land in Idaho is protected under the Clean Water Act. The case involves an Idaho couple, Michael and Chantell Sackett, who sought to build a house in the state’s panhandle. After they began preparing for construction in 2007, the Sacketts were stopped by the EPA, which said the property included a federally protected wetland. EPA ordered them to return the property to its original state or face fines. The couple sued the agency and the Supreme Court heard oral arguments last fall.
The EPA began the rulemaking process on updating the definition last June. That preliminary ruling is available for public comment until February 7. The proposal, once approved, would come into effect 60 days following its publication in the Federal Register. A final decision from the EPA is expected this June, with the Army’s decision on issuance of Nationwide Permit (NWP) 12 under Section 404 of the CWA expected this August.
In 2015, the Obama administration supplied a definitional amendment to “provide critical context and guidance in determining the appropriate scope” of WOTUS that is covered by the CWA. It was heavily criticized at the time as an example of government overreach and an infringement of private property, as it included any place regulators could argue was wet, even in such cases as an area immediately after an uncommonly heavy rain, such as a temporary mud puddle. The Government Accountability Office found the EPA at the time engaged in a ”covert propaganda” program using social media to convince the public of their actions’ worthiness.
In April 2019, President Trump targeted the definition with Executive Order 13868, which took aim at state authority over water quality certifications to gain approvals for natural gas infrastructure. The Executive Order in 2020 was further ensconced following a rulemaking by the EPA under the Trump administration, known as the Navigable Waters Protection Rule (NWPR). Oil and gas organizations at the time voiced their support for the NWPR after years of complaints that state governments opposed to energy infrastructure improperly relied on the scope of the CWA to obstruct the pipeline permitting process. This was part of President Trump’s “energy dominance” program of making the United States more energy self-sufficient.
On his first day in office, President Biden signed Executive Order 13990, Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, granting the EPA and Army the authority to once again review and rescind the NWPR.
Clean Water Act jurisdiction has been a muddy area, particularly when it comes to wetlands that do not have direct surface water connections to larger waterways like rivers and streams. For the past 15 years, questions of which wetlands have enough of an impact on downstream waters to merit federal protections have all come down to how EPA and the Army Corps of Engineers interpret the Supreme Court’s decision in Rapanos v. U.S.
That 2006 case splintered the justices 4-1-4 and resulted in two competing tests to determine if property must meet the Clean Water Act permitting requirements. In one case, wetlands would be federally protected if they have a hydrologic, biological or chemical impact on downstream waterways—a test that has been largely adopted by federal courts. In another case, only wetlands with relatively permanent surface water connections to larger waterways would merit protection. The terminology involves “navigable waters,” and what that is intended to mean.
The Supreme Court again dealt with questions of Clean Water Act jurisdiction in the case Sackett v. EPA. During oral arguments last fall, the justices homed in on the question of whether federal protections applied to a wetland located about 300 feet away from a regulated lake but separated from it by a human-made road. Several justices inquired whether a new test is needed to best identify federally protected waters. It is unclear how the new rule will affect the Supreme Court’s decision this year and, in turn, how the Supreme Court could impact the new rule.
Permitting reform is needed for infrastructure, transportation and energy projects to end the endless costs occurred from needless regulation and lawsuits by environmentalists. And, certainty is necessary to ensure agriculture is not unduly burdened by an expansive definition of navigable waters. This rule does not provide that reform. Rather, it moves the process backwards by making more projects subject to federal permitting requirements and adding more bureaucratic red tape. The rule makes it more difficult for Americans to get the energy they need at affordable costs. Further, the Supreme Court case now being considered will most likely have an impact on the ruling.