On November 18, 2021, the U.S. Army Corps of Engineers (USACE) and the U.S. Environmental Protection Agency (EPA) issued a proposed rule to define waters of the United States (2021 WOTUS Rule). The 2021 WOTUS Rule is similar in structure and approach as the pre-2015 regulations, which are described in the 2008 USACE and EPA memorandum titled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States. Compared to the 2020 Navigable Waters Protection Rule (NWPR), the 2021 WOTUS Rule would result in potentially substantial differences in jurisdictional status including, but not limited to, the following.
- Under the 2021 WOTUS Rule, ephemeral waters would be jurisdictional if they have a significant effect on the chemical, physical, or biological integrity of a navigable water, interstate water, or territorial sea.
- The 2020 NWPR identifies all ephemeral waters as non-jurisdictional.
- Under the 2021 WOTUS Rule, the term “adjacency” is defined to allow greater professional judgement regarding when a wetland is considered “adjacent” to a water of the United States.
- The 2020 NWPR defines “adjacency” with specific hydraulic and hydrologic criteria, resulting in a reduction in wetlands that were adjacent to waters of the United States.
- Under the 2021 WOTUS Rule, waste treatment systems and prior converted cropland (PCC) are excluded from the scope of waters of the United States.
- The 2020 NWPR includes 12 categories of excluded waters, including waste treatment systems and PCC, but also specific exclusions for artificial waterbodies constructed in dryland, stormwater facilities, and most ditches, to name a few.
Additionally, the 2021 WOTUS Rule would depart from some of the practices under the 2008 Agency Guidance, including:
- Revising a “significant nexus” to consist of a physical, chemical, or biological effect on any navigable water, interstate water, or territorial sea.
- The 2008 Agency Guidance only allows for a “significant nexus” if the subject wetland or non-wetland water has a physical, chemical, and biological effect on a downstream traditional navigable water.
- Expanding the scope of which waters are eligible for a “significant nexus” based determinations of jurisdiction to include non-wetland waters.
- The 2008 Agency Guidance does not have a means for asserting “significant nexus” based on jurisdiction over non-wetland waters which are not tributaries to other waters of the United States (e.g., floodplain ponds that lack a surface connection to a receiving water of the United States).
The 2021 WOTUS Rule will be subject to public and interagency comment prior to finalization and implementation. SWCA recommends reviewing the proposed rule to identify potential concerns or benefits, attending virtual Public Hearings currently scheduled for January 12, 13, and 18, 2022, and submitting comments via Regulations.gov during future comment periods.