So, What Exactly Is A Water Of The U.S.?

by Patrick J. Paul

The federal Clean Water Act created federal jurisdiction over “navigable waters” defined as “waters of the United States” (WOTUS). Since becoming law in 1972, debate over what is, and is not, WOTUS has been robust. 

The Supreme Court’s 2006 decision in Rapanos v. U.S. epitomized the challenges in finding consensus on what should be regulated as WOTUS. A four vote plurality opinion authored by Justice Scalia offered a relatively narrow definition to include only relatively permanent standing or continuously flowing bodies of water and only wetlands with a continuous surface connection to WOTUS.  Justice Kennedy issued a separate opinion concurring in part with the Scalia plurality but introducing an additional assessment requiring a “significant nexus” between wetlands and the navigable waterway at issue to be considered WOTUS.  The Kennedy significant nexus test has generally been utilized since and most federal appellate courts consider that test to be controlling.

The U.S. Army Corps of Engineers and EPA are the agencies charged with regulating WOTUS.  In 2015, the Obama EPA and Corps promulgated the Clean Water Rule which broadened the scope of federal jurisdiction by taking an expansive view of justice Kennedy’s “significant nexus” test.  Not to be outdone, the Trump EPA and Corps in 2020 repealed the Clean Water Rule and passed its own Navigable Waters Protection Rule (NWPR) which greatly narrowed the scope of federal jurisdiction bringing it more in line with this Scalia plurality.

Not surprisingly, the Biden administration ordered a review of all Trump rules from day one. On June 9, 2021, the Biden EPA and Corps announced their intent to revise the definition of WOTUS, presumably to something more in line with the Clean Water Rule. However, while reviewing revisions, the agencies left in place the NWPR.  For our prior discussion of the proposed rule click HERE. 

More recently, on August 30, 2021, a Federal District Court in Tucson in Pasqua Yaqui Tribe, et. al, v. EPA, No. CV-20-00266 (D. Ariz. Aug 30, 2021) went a step further and not only remanded the NWPR to the agencies at the request of plaintiff Tribes, but also vacated it, finding it contains serious errors and that leaving it in place could result in serious environmental harm. DECISION

So, what now? Subsequent guidance from the agencies indicate that this ruling will be applied nationwide and that those with pending “approved jurisdictional delineation” requests will be reviewed pursuant to the significant nexus test that predated both the Obama Clean Water Rule and the Trump NWPR. Existing AJDs issued under the NWPR will continue to remain in effect subject to their five year lifespan, after which additional scrutiny could occur under yet a different set of rules if the projects are not completed within the five-year window.

Recognizing the challenges presented by the court’s decision to not only remand but vacate, numerous Arizona-based business groups on October 26, 2021 filed a motion for stay of the decision noting in part that the “ongoing rulemaking process would likely subject businesses to three different comprehensive regulatory regimes in a short amount of time.”  MOTION

ADEQ in a letter dated October 1, 2021 to EPA on the topic succinctly noted the following:  “The continued shifting of the WOTUS definition in recent years creates uncertainty and confusion for thousands of Arizona residents, businesses, and regulators.”  Exactly!