The Biden Administration, through the Environmental Protection Agency and Army Corps of Engineers, released its long-awaited definition of “Waters of the United States” (WOTUS) under the Federal Water Pollution Control Act of 1972 (The Clean Water Act). The final rule is the latest interpretation of the Clean Water Act’s federal jurisdiction over private and public land use decisions impacting the nation’s drainages and wetlands. Pursuant to federal administrative law, the rule will take legal effect on March 20, 2023.

Reaction to the final rule was swift, with the State of Texas, and several farm and industry groups filing separate lawsuits to block it, decrying the rule as vague and costly to landowners. The federal District Court for the Southern District of Texas could order a stay of the rule pending the imminent U.S. Supreme Court’s decision in Sackett v. EPA, argued this past October. The Sackett case – argued before three of the justices who earlier (in the case of Rapanos v. U.S.) held for a more restrictive definition of WOTUS than that just issued by EPA – may serve to vacate the present rule. With three post-Rapanos conservative justices appointed under the previous administration, the outcome appears to favor a more narrow definition.

The new rule embraces a broader definition expressed by Justice Anthony Kennedy in Rapanos, who in a concurring opinion in that case rejected the standard dictated by Justices Scalia (deceased), Alito, Thomas, and Chief Justice Roberts, which would limit jurisdiction to land features with a continuous surface water connection (via tributary) to a navigable-in-fact waterway. Justice Kennedy’s rule – expressed in a concurring opinion in the case – opened the door for agencies to make a determination of a land feature’s impact on otherwise jurisdictional waters based on a “hydrologic connection,” which may not necessarily include a continuous surface connection. This was the 2015 response to Rapanos under the Obama Administration, which was reversed by the subsequent administration in favor of the Scalia “surface connection rule” (this definition was known as the Navigable Water Protection Rule [NWPR]).

The principle at issue is whether one believes Congress – in passing the Clean Water Act 1972 – intended that federal jurisdiction only apply to protect the “biological, chemical, physical and radiological integrity” of a body of water (the stated goal of CWA) when a party discharges substances (including dirt) directly into water as an affirmative act, or whether Congress also intended that manipulations to upland drainage features also could have an impact on the health of a body of water and should therefore be regulated. Either way, where federal jurisdiction ends, state law may pick up the mantle of protection to the extent they choose. (An exploration of North Carolina wetlands protection law can be found here.) As evidenced by its holding in West Virginia v EPA in June 2022, the current 6-3 conservative majority on the U.S. Supreme Court appears generally not willing to afford an administrative agency much leeway in interpreting the language offered in a federal statute when such interpretation involves what the majority believes to be a “major question.”

At first glance, the language of the new rule is a return to the Kennedy “hydrologic connection” rule, with a few tweaks of the proposed rule issued in December of 2021. (A side by side comparison between the new rule and the NWPR can be found in this presentation to the NC Irrigation Society in November 2022 [update in progress].)