Woes for WOTUS: Revisiting the Definition of “Waters of the United States”

Pasqua Yaqui Tribe concerns the meaning of the phrase “waters of the United States” (WOTUS). This phrase is critically significant because it defines the CWA’s jurisdiction. The CWA regulates discharges of pollutants from point sources to “navigable waters.” In turn, the CWA defines “navigable waters” as “waters of the United States, including the territorial seas.” However, the CWA does not further define WOTUS, and many CWA programs, including the National Pollutant Discharge Elimination System, apply only to discharges into WOTUS.

For years, the EPA and the USACE issued regulations defining WOTUS to cover tributaries and impoundments of interstate waters, other waters used in or affecting interstate or foreign commerce, and wetlands adjacent to those waters (including wetlands separated by man-made barriers or dikes, beach dunes, and natural river berms). Then, in 2006, the United States Supreme Court decided Rapanos v. United States.

In Rapanos, the Court considered whether wetlands connected by natural or artificial ditches to distant navigable waters were WOTUS and thus subject to regulation under the CWA. Two tests emerged from Rapanos: (1) the Scalia Test; and (2) the Significant Nexus Test.

Scalia Test

The Scalia Test, announced in Justice Scalia’s four-justice plurality opinion, provides that WOTUS “includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams [,] … oceans, rivers, [and] lakes.’” Rapanos v. United States, 547 U.S. 715, 739 (2006) (alterations in original). Additionally, “only those wetlands with a continuous surface connection to bodies that are ‘[WOTUS]’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [CWA].”

Significant Nexus Test

On one hand, as announced in Justice Kennedy’s concurring opinion, the Significant Nexus Test provides that wetlands qualify as “navigable waters” if there is “a significant nexus between the wetlands in question” and traditionally navigable waters such that “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally navigable waters. On the other, “[w]hen … wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term ‘navigable waters.’”

Comparatively, the Significant Nexus Test brings more water bodies under the CWA’s purview than the Scalia Test. The Seventh Circuit and other federal circuits subsequently adopted the Significant Nexus Test. See, e.g., United States v. Gerke Excavating, Inc., 464 F.3d 723, 725 (7th Cir. 2006) (“Justice Kennedy’s proposed standard … must govern the further stages of this litigation ….”).

Under the Obama administration, the EPA and the USACE redefined the term “navigable waters” in the “Clean Water Rule.” See 80 Fed. Reg. 37054 (June 29, 2015). But in 2017, former President Trump directed the agencies to repeal the Clean Water Rule and replace it with the Scalia Test. In 2019, the EPA and the USACE repealed the Clean Water Rule and issued the Navigable Waters Protection Rule (NWPR) in its place. The NWPR redefined the term WOTUS to include the territorial seas, waters used in interstate or foreign commerce, tributaries, lakes and ponds and impoundments of jurisdictional waters, and adjacent wetlands. 85 Fed. Reg. 22250, 22340 (Apr. 21, 2020) (codified at 40 C.F.R. § 120.2).

Current Status

In Pasqua Yaqui Tribe v. EPA, a group of Native American tribes challenged the NWPR. No. 20-cv-00266, 2021 WL 3855977 (D. Ariz. Aug. 30, 2021). With the election of President Biden and his directive to reconsider Trump-era regulations, defendants EPA and USACE moved to voluntarily remand the NWPR to the agencies and to dismiss the claims challenging that rule but without vacatur of the NWPR. The agencies had already provided notice that they intended to restore the pre-2015 definition of WOTUS (i.e., the Significant Nexus Test) while they worked to develop a new definition of WOTUS. Plaintiffs did not oppose the remand of the NWPR to the agencies, but they argued that a remand of the NWPR should include vacatur of the NWPR. The Court agreed with Plaintiffs and, on August 30, 2021, the Court vacated and remanded the NWPR to the EPA and USACE for reconsideration.

It is unclear, however, whether the court’s remand and vacatur of the NWPR applies nationwide, or only in Arizona. In fact, in other cases challenging the NWPR, at least one federal court has granted the EPA’s and the USACE’s request to remand the rule without vacatur. For example, in South Carolina Coastal Conservation League v. Regan, the Court granted the EPA’s and USACE’s motion for voluntary remand of the NWPR without vacatur of that rule. No. 20-cv-01687-BHH, 2021 U.S. Dist. LEXIS 132031 (D.S.C. July 14, 2021). Another court vacated a district court’s order that stayed the effective date of the NWPR and preliminarily enjoined the EPA and USACE from implementing the NWPR in Colorado because the State did not show that it would suffer irreparable injury from the law taking effect. Colorado v. U.S. Env’t Prot. Agency, 989 F.3d 874 (10th Cir. 2021). On remand in Colorado, the parties jointly moved to hold the case in abeyance in light of the EPA’s and USACE’s announcement that they would initiate a new WOTUS rulemaking. The district court granted the parties’ motion. Order on Motion to Stay, Colorado v. U.S. Env’t Prot. Agency, No. 20-cv-01461-WJM-NRN (D.C. Colo. July 14, 2021).

Though the impact of the Pasqua Yaqui Tribe decision remains unclear, the EPA and the USACE announced that they “have halted implementation of the [NWPR] and are interpreting [WOTUS] consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps.” On October 12, the EPA and USACE sent a draft proposed rule on WOTUS to the White House Office of Management and Budget for pre-publication review, and we can expect a new rule in the coming months. As of now, however, the CWA world is turning back to Rapanos-era regulation.

This article first appeared in the CBA Record.