And the Dance Continues: New Proposed WOTUS Rule

On Tuesday the U.S. EPA’s and U.S. Army Corps’ (“Agencies”) proposed revised definition of Waters of the United States (WOTUS) was published in the Federal Register, triggering a 60-day public comment period that concludes on February 7, 2022. The Agencies have also scheduled several virtual public hearings in January 2022.

This proposed rule is the first of the Agencies’ previously announced two-step process for revising the WOTUS definition. In this initial effort the Agencies are mostly accomplishing the stated goal of returning to the pre-2015 regulatory regime. The Agencies have already unofficially been operating under this regime since September 2021 in response to the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Trump administration’s Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. Once this proposed rule is finalized, the Agencies’ second step will be a more comprehensive re-analysis that will culminate in a more fulsome revised WOTUS definition.

This proposed rule restores most of the circa 1986 regulatory language that established the contours of WOTUS before the Obama administration revised the definition in 2015, and it adjusts and explains that language to implement the Agencies’ understanding of the most relevant intervening U.S. Supreme Court decisions (SWANCC v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006)), as mostly set forth in the Agencies’ post-Rapanos guidance.

However, the proposed rule contains some subtle changes and some shifts in emphasis from the pre-2015 landscape. In addition, the proposal contains numerous instances where the Agencies foreshadow and seek comment on possible additional changes. Thus, this proposal and the Agencies’ deliberative efforts require close attention, particularly because more comprehensive shifts in approach are possible as the Agencies finalize some components currently under discussion.

A primary emphasis in the proposed rule is the Agencies’ incorporation of both Rapanos tests into the WOTUS definition. Consistent with post-Rapanos guidance, the Agencies will continue asserting federal jurisdiction over waters that meet either the Rapanos plurality’s or the concurrence’s tests. Under Justice Scalia’s (plurality) test, WOTUS includes traditional interstate navigable waters, all relatively permanent bodies of water connected thereto, and wetlands with a continuous surface connection with those waters. See 547 U.S. at 742. Justice Kennedy’s concurrence focused primarily on wetlands and found the Agencies could only assert jurisdiction over wetlands with a “significant nexus” to traditional navigable waters. See id. at 782. In the proposed rule, the Agencies adopt an expansive interpretation of both tests and apply the either/or approach throughout. Although this is consistent with the Agencies’ post-Rapanos guidance, the U.S. Circuit Courts of Appeals are currently split over whether this approach is an appropriate interpretation of the fractured Rapanos decision.

The Agencies then apply this relatively permanent and/or significant nexus analysis across a wide variety of waters and circumstances, not merely wetlands adjacent to tributaries as the justices considered in Rapanos. Thus, the proposed rule contemplates relatively permanent / significant nexus tributaries, wetlands, and “other waters” in parsing the contours of federal jurisdiction.

This incorporation of “other waters” into the analysis marks the biggest diversion from the pre-2015 regulatory regime. The 1986 regulations contained this imprecise category of “navigable waters,” defined to include any water whose “use, degradation, or destruction … could affect interstate or foreign commerce.” 33 CFR 328.3 (2014). In SWANCC, the Supreme Court cast this category into doubt and arguably mandated its vacatur. See 531 U.S. at 172 (“Where an administrative interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear indication that Congress intended that result.”). The Agencies represent in the proposed rule commentary that they have not generally relied on the “other waters” category since SWANCC. The Agencies now propose to supplant the 1986 definition with an ”other waters” definition consisting of all relatively permanent waters with a continuous surface connection to traditional navigable waters and all waters with a significant nexus with traditional navigable waters. This could represent a broad expansion of the universe of waters to which the Agencies’ either/or Rapanos approach must be applied.

The Agencies’ nearly 300-page proposed rule contains numerous other more modest changes and requests for comment, and their potential ramifications must be assessed against the unique circumstances of each industry and business. Please do not hesitate to contact Jennifer Simon at jsimon@kmcllaw.com or any of the other attorneys at KMCL with questions or to discuss further.