Biden Administration Finalizes Updated WOTUS Rule

Nossaman eAlert

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, the Agencies) released their amendment to the January 2023 rule (January 2023 Rule) defining what constitutes waters of the United States (WOTUS) in order to incorporate the majority’s opinion in Sackett v. EPA. We have previously reported extensively on Sackett and the varying iterations of the definition of WOTUS. You can view EPA’s webpage on the amendment here. The amended rule is expected to be published in the Federal Register by Friday, September 1, 2023, meeting the Agencies’ previously established deadline and will be effective upon publication. Surgical in approach, the amendment–which the Agencies refer to as the “Conforming Rule”–makes several targeted revisions to the January 2023 Rule to comply with Sackett:

  • Redefining “adjacent” to simply mean “having a continuous surface connection;”
  • Striking all references to waters qualifying as jurisdictional on the basis of whether they “significantly affect the chemical, physical, or biological integrity of waters” and correspondingly removing the definition and qualifying criteria for “significantly affect;” and
  • Striking “interstate wetlands” from the list of WOTUS categories.

Collectively, these revisions remove all elements of the January 2023 Rule that relied on Justice Kennedy’s “significant nexus” test established by Rapanos. The revisions are best viewed in the regulatory text redline document provided by the Agencies, available here. The Agencies will provide an informational webinar on the Conforming Rule on September 12, 2023 at 3:00 p.m. ET. Registration may be made here (registration is limited, but the webinar will be recorded and made available to the public).

What’s Next?

For the same reasons the Agencies cited when bypassing public notice and comment under the Administrative Procedure Act (APA), discussed in our prior eAlert, the Conforming Rule will take effect immediately upon publication in the Federal Register. The Corps’ pause on issuing approved jurisdictional determinations (AJDs) also will be lifted upon the implementation of the Conforming Rule, a relief for project permittees who have been in limbo since the Sackett decision.

Because the January 2023 Rule is enjoined in roughly half the country, the Agencies state that they will implement the January 2023 Rule, as amended by the Conforming Rule, in 23 states (including California, Washington and Arizona). In the other 27 states where the January 2023 Rule has been enjoined (including Texas, Alaska and Oklahoma) and for certain parties, the agencies are interpreting WOTUS consistent with the pre-2015 regulatory regime and the Supreme Court’s decision in Sackett until further notice.

Upon publication of the Conforming Rule, Texas, Idaho and industry groups who obtained an injunction in the Southern District Court of Texas will now have 21 days to submit a proposal for further proceedings. We expect litigants potentially in this case and others also may bring claims against the Conforming Rule that the Biden Administration violated the APA. Claims will likely include assertions that the “good cause” exemption to bypass public notice and comment rule-making should not be upheld (noting that good cause exemptions are rarely upheld) and objections to the agencies’ immediate implementation of the Conforming Rule.

In the meantime, several Congressional Democratic leaders are increasingly vocal in their call for congressional action to correct course on WOTUS and return historic protections. While we may see a bill as soon as later this fall, it is unlikely to gain momentum in the current Congress, especially with looming legislative hurdles like avoiding a government shutdown on the horizon.

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