On August 29, 2023, USEPA released a revision to the rule defining “waters of the United States” (“WOTUS”). See https://www.epa.gov/wotus. This revised rule (the “Post-Sackett Rule”)—the latest in a long series of continuingly evolving definitions of WOTUS—updates the Biden administration’s January rule (fatefully billed as a “durable” WOTUS Rule) to be consistent with the United States Supreme Court’s ruling in Sackett v. EPA.
The Post-Sackett Rule removes the “significant nexus” standard and also clarifies that a wetland must have a continuous surface connection to a navigable waterway. Both of these are substantial deviations from how the Clean Water Act has been implemented since the 2007 Rapanos decision.[1] Instead, the Post-Sackett Rule (as directed by the Court in the Sackett decision) adopts the “relatively permanent” standard for determining federal jurisdiction over streams, lakes, rivers, and wetlands. The rule clarifies that to meet that standard, a water must be a “ relatively permanent, standing or continuously flowing bod[y] of water,” and a wetland must both meet the relatively permanent standard and have “a continuous surface connection to” a traditionally navigable water.
This Post-Sackett Rule was issued as a final rule with no opportunity for public comment. USEPA justified that this approach was warranted under the federal Administrative Procedure Act, because there was no active WOTUS definition that agencies could use to implement the Clean Water Act.
Despite being issued as a final rule, however, there is little doubt that this Post-Sackett Rule will be challenged. The real question is: Who will challenge the rule? In terms of substantive challenges, industry, trade and agriculture groups might challenge certain language that was kept in the rule. More likely, however, environmental groups will challenge the rule in hopes of strengthening the definition and, as a result, achieving federal protection for more waters and wetlands.
Upon initial review of the Post-Sackett Rule, the revisions to the rule create apparent ambiguity about the treatment of intermittent and ephemeral streams. A strict reading of the Post-Sackett Rule could be interpreted to remove both ephemeral and intermittent streams from the definition thereby placing both categories of streams outside the scope of Clean Water Act protection and/or enforcement. Under the revised definition, the only tributaries to a navigable water that meet the definition of a WOTUS are those “that are relatively permanent, standing or continuously flowing bodies of water[.]” See § 120.2(a)(3). By definition, an ephemeral or intermittent stream is neither standing nor continuously flowing. Therefore, the jurisdictional analysis would seem to depend on whether or not an intermittent stream is “relatively permanent.” (As compared to the analysis of "adjacent" in the Sackett case.) While the fact sheet issued along with the rule to highlight the impact of the textual changes does not mention this impact on streams, it remains to be seen whether such a change might be an unintended (or at least unmentioned) consequence of the revision.
Even if the status of intermittent streams are not impacted by the revisions, the revisions will exclude a substantial number of previously-included wetlands. Importantly, however, many of these wetlands will still be covered under Ohio law and by similar laws in other states. See, e.g., ORC § 6111.01 et seq. Therefore, it will be important for landowners, developers, and anyone else considering impacts to waters to consider permitting requirements under both state and federal jurisdiction.
If you have any questions about state or federal permitting under the Clean Water Act or Ohio laws, reach out to Nat Morse, Kristin Watt, Ryan Elliott, or your Vorys attorney.
[1] See, e.g., this blog article for further background on the ever-evolving WOTUS definition: https://energyenvironmentalblog.vorys.com/2023_wotus_rule.