Tag: Waters of the United States

WOTUS Whiplash 4.3: The Revision to the Revised Definition of “Waters of the United States”

The third major development of 2023 for defining “Waters of the United States” (“WOTUS”) has arrived.

First, in early 2023, the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“USACE”)(together, the “Agencies”) revised the definition of “Waters of the United States” (the “2023 Rule”). This definition controls which water resources qualify for federal protection under the Clean Water Act (“CWA”) (see WOTUS Whiplash 4.0 for a description of the 2023 Rule). Second, in May, the United States Supreme Court released its Sackett v. EPA decision. Third (and likely the final WOTUS milestone of the year), the Agencies recently issued yet another revised WOTUS definition in light of Sackett.  This article breaks down the Supreme Court’s impactful Sackett decision, the Agencies’ corresponding 2023 Rule revision, and the consequences of such changes for states like North Carolina – which is simultaneously undergoing state environmental statutory changes.

The Regulatory Landscape Pre-Sackett

Before Sackett, the Supreme Court’s Rapanos decision controlled whether wetlands separated from a recognized WOTUS by a natural or man-made barrier fell under CWA jurisdiction.  If they did, impacts to those wetlands required a permit from the USACE under Section 404 of the CWA.  In Rapanos, the Court failed to reach a coherent majority decision.  Justice Scalia drafted the four-justice plurality opinion, holding that WOTUS included: (1) only those waters that are “relatively permanent, standing, or continuous[ly] flowing” such as streams, rivers, and lakes; and (2) only those wetlands that share a continuous surface connection with such waters.  But Justice Kennedy, who cast the deciding vote in Rapanos, created a different test. This test, which became the most commonly cited rule for WOTUS, assessed whether a wetland possessed a “significant nexus” to a recognized WOTUS.  This “significant nexus” test extended CWA protections to wetlands that “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters . . . .”

In addition, pre-Sackett, the Agencies adopted WOTUS definitions in various rules, manuals and policies that, like Justice Kennedy’s “significant nexus” test, considered “adjacent wetlands” to be jurisdictional—including those that are “separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like.”  When the Agencies issued the 2023 Rule, they basically combined Scalia’s Rapanos approach (putting relatively permanent tributaries and streams back under federal jurisdiction through continuous surface connections) with Kennedy’s Rapanos approach (applying the “significant nexus” test to non-navigable tributaries and adjacent wetlands).  The Agencies published the 2023 Rule knowing that the Supreme Court would soon thereafter issue an opinion in Sackett, which was argued in October 2022.

Sackett v. EPA

The Sacketts sued the EPA in 2008 over whether they had violated the CWA by backfilling a wetland on their property without a Section 404 permit from USACE.  The EPA argued that this wetland shared a significant nexus with Priest Lake, a WOTUS separated from the Sacketts’ property by a 30-foot road.  On May 25, 2023, a five-justice majority issued its opinion in Sackett, which greatly limited federal CWA jurisdiction over wetlands nationwide.  The Court found that the Agencies’ rules were inconsistent with the CWA’s text and structure and held that the CWA extends only to those “‘wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that they are ‘indistinguishable’ from those waters.”  Writing for the majority, Justice Alito concluded that “the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.'”

Under the 2023 Rule, which was not at issue in Sackett, wetlands without a continuous surface connection to a body of water could still be federally protected WOTUS if the wetland had a “significant nexus” to surface waters.  But Sackett  rejected the “significant nexus” test in favor of defining covered wetlands as those that are wet or “wet-lands.” Thus, any WOTUS definition using “adjacency” or “adjoining” to define CWA-protected waters is irrelevant. Instead, there must now be a continuous surface water connection between “wet lands” and the open, navigable-in-fact WOTUS for the federal government to claim jurisdiction.  Wetlands that qualify as WOTUS must be “indistinguishable” from WOTUS and “have a continuous surface connection to bodies that are” WOTUS.

The Regulatory Landscape Post-Sackett

The Agencies responded to Sackett by announcing they would develop new guidelines for determining federal jurisdiction by September 1, 2023.  And they met that unprecedented deadline, taking a scalpel to the 2023 Rule to conform it to Sackett (the “Sackett Rule”). The Agencies removed from the 2023 Rule references to the “significant nexus” test, including deleting from the WOTUS definition interstate wetlands and those tributaries, streams, and wetlands containing a significant nexus to other WOTUS.  They also redefined “adjacent” within the 2023 Rule to no longer include those wetlands separated from WOTUS by certain geographic features and limiting the meaning of “adjacent” to those waters “having a continuous surface connection” to another.

Despite these precise revisions, the Agencies did not define a “continuous surface connection” or a “relatively permanent” body of water under the Sackett Rule.  Thus, lawyers and consultants must make this initial interpretation by picking through the preamble to the 2023 Rule.  And they must wait to see how the Agencies, primarily the USACE, implement the Sackett Rule to wetlands in the field.

Challenges for State Law and Regulation

Although the Sackett Court removed federal protection from wetlands, it acknowledged that the states could provide that protection. Justice Alito pointedly noted that “[r]egulation of land and water use lies at the core of traditional state authority”; because the CWA anticipates a partnership between the states and the federal government, the states “can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.”

And North Carolina exercised its authority to provide greater state protection for its wetlands until June 27, 2023.  On that date, the North Carolina General Assembly overrode a gubernatorial veto to pass Senate Bill 582, entitled “An Act to Make Various Changes to the Agricultural and Wastewater Laws of the State” (the “2023 NC Farm Act”). The 2023 NC Farm Act restricts the state definition of “wetlands” to those “that are waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3,” i.e., only those WOTUS regulated by the Agencies. The General Assembly directed the Environmental Management Commission (“EMC”), the state rule-making authority, to implement this definition of “wetlands” until the EMC formally adopts a permanent rule to amend the existing definition of wetlands. Until then, wetlands in North Carolina are only those the federal government recognizes and protects as WOTUS, unless a state statute (for example, the Coastal Area Management Act) specifically provides otherwise.

The combination of the Sackett opinion, the 2023 NC Farm Act, and the Sackett Rule cast doubt as to whether the state’s isolated wetlands rules remained in effect, despite having a separate regulatory definition that was not by the 2023 Farm Act.  The EMC Chair requested the North Carolina Department of Environmental Quality (“NCDEQ”) to advise on the assimilation of federal and state definitions.  At the EMC’s meeting in September, the NCDEQ Division of Water Resources (“DWR”) provided an update to the regulated community. It also issued a public notice regarding the implementation of the revised definition of wetlands in the 2023 NC Farm Act, including the following:

  • Where the USACE and a 404 Permit applicant agree that all features on the property are potentially jurisdictional, DWR will process the related state certification required by Section 401 of the CWA.
  • Where there are questions regarding the jurisdictional status of the wetlands, the USACE will evaluate those wetlands under the Sackett Rule. DWR will move forward on these projects once it has a decision from USACE.
  • Isolated wetlands and non-jurisdictional wetland permits will not be necessary for properties that have received Approved Jurisdictional Determinations from the USACE confirming the wetlands are not under the Sackett Rule.

Questions remain as to the specifics of North Carolina’s regulatory jurisdiction of wetlands as State waters. The 2023 NC Farm Bill was introduced before the Sackett opinion was released.  And given the breadth of Sackett, the Bill’s proponents may not have intended the resulting consequences. The filling of unregulated wetlands may result in reduced floodwater mitigation and stormwater filtration, affecting surface water quality and other ecological functions. Counties bearing the brunt of storm impacts increasingly caused by climate change have made gains in resiliency planning.  But those gains may be reduced or eliminated if policymakers do not address the potential loss of wetlands in those counties.

Navigating Uncharted WOTUS

Despite the uncertainty cast over wetlands by Sackett, the 2023 NC Farm Act, and the Sackett Rule, it’s important to remember that the CWA has four other categories of protected waters. And several state laws continue to apply to activities impacting wetlands even if CWA Section 404 permit requirements do not. These include the Sedimentation and Pollution Control Act with respect to enforcement actions for land-disturbing activities and the Coastal Area Management Act for development activities in coastal counties. Since the 2023 Rule was not before the Sackett Court, the conforming Sackett Rule may be exposed to challenges.  Expect to see more guidance from the Agencies as the USACE makes jurisdictional determinations in the field.  Landowners will need to identify the water features on their property to understand what federal and state regulatory programs are at play beyond Section 404 of the CWA. Strategies to manage uncertainty include working with a professional team to consider: preliminary versus approved jurisdictional determinations; state and local requirements; avoidance opportunities; and development plans with built-in flexibility.

© 2023 Ward and Smith, P.A.. All Rights Reserved.
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The EPA and Army Corps’ “Waters of the U.S.” (WOTUS) Rule to Become Effective on March 20

In January of 2023, the federal Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published in the Federal Register (see Federal Register/Vol. 88, No. 11, January 18, 2023) new rules that define which water bodies are classified under the Clean Water Act (CWA) as “waters of the U.S.” (WOTUS). While this may not appear to be significant, the adoption of these rules will have major implications for how federal agencies will identify the types of water bodies that are subject to jurisdiction under the CWA. The January 18th Federal Register publication provides that these new rules will become effective on March 20, 2023.

The CWA is the law that provides federal agencies the authority to prohibit or limit various activities that can impact WOTUS, such as the regulation of industrial and municipal wastewater discharges to navigable waters, the dredging or filling of wetlands, and the requirement to prepare “Stormwater Pollution Prevention Plans” (SWPPP) for industrial facilities. It also is the basis for much State law water regulation.

Applicability of the CWA

To be classified as a WOTUS, a water body must be considered to be “navigable,” but this term is more arcane than it might at first appear. Navigable waters as defined by the CWA includes, “waters of the United States,” and has been further defined by regulation to include those waters that “are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” This approach to navigability has led some states to adopt a “saw log test” as to whether the body of water could float a saw log for commercial purposes. In other states, such as Wisconsin, the test for navigability is whether the body of water can on a recurring basis – even if intermittent – support navigation by the smallest recreational craft, such as a canoe or kayak. Therefore, navigable waters not only can include larger lakes, rivers and streams, but can also include less obvious smaller water types such as wetlands adjacent to navigable waters, and even in some instances, ditches that hold water. While the CWA provides federal jurisdiction over WOTUS, the CWA does not actually define the term WOTUS; rather, it provides authority for EPA and the USACE to define WOTUS in regulations, which since the 1970s, the agencies at various times have done.

The Rapanos Decision and Competing Rationales

Further, the definition of what constitutes WOTUS has been reviewed in several U.S. Supreme Court cases, but the most significant case on this subject is the 2006 case of Rapanos v. United States, 547 U.S. 715 (2006), in which the Supreme Court interpreted the definition of WOTUS using two separate tests. In a four-justice plurality opinion written by Justice Scalia, WOTUS was defined as “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,” and “wetlands with a continuous surface connection” to a “relatively permanent body of water connected to traditional interstate navigable waters.” However, Justice Kennedy applied a different approach in a concurring opinion and stated that WOTUS must possess a “significant nexus” to waters that are or were navigable in fact or that could reasonably be so made.” He added that adjacent wetlands could possess a significant nexus if the wetlands “either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.'”

Regulatory Attempts to Define WOTUS Following Rapanos

Following Rapanos, the agencies have at various times developed guidance for implementing the WOTUS definition. For example, in 2015, under the Obama administration, the agencies amended their regulations defining WOTUS as part of the “Clean Water Rule, which expanded the definition of which water bodies were defined as WOTUS, and included the use of the “significant nexus” test. Again, in 2020, under the Trump administration, another rule was adopted, known as the “Navigable Waters Protection Rule” (NWPR), which limited the types of water bodies that were considered WOTUS under the previous 2015 Clean Water Rule. However, in 2021, in Pasqua Yaqui Tribe v. EPA, (Case No. 4:20-cv-00266), the U.S. District Court for the District of Arizona vacated implementation of the NWPR nationwide. The new rules published in the January 2023 Federal Register represents the Biden administration’s effort to rewrite the WOTUS rules following the vacation of the NWPR, allowing the agencies the ability to use both Justice Scalia’s “relatively permanent” test or Justice Kennedy’s “significant nexus” test in determining whether they have jurisdiction over water bodies.

WOTUS under the New Rule

Use of the “relatively permanent” test or the “significant nexus” test is apparent in the new rule’s definition of WOTUS. The 2023 rules identify the following waters as WOTUS:

  • Traditional navigable waters, the territorial seas, and interstate waters;
  • Impoundments of waters otherwise identified as WOTUS;
  • Tributaries of navigable waters, territorial seas, interstate waters, or impoundments if the tributaries meet the relatively permanent test or the significant nexus test;
  • “Adjacent wetlands,” which includes wetlands adjacent to navigable waters, wetlands adjacent to and with a continuous surface connection to relatively permanent impoundments, wetlands adjacent to tributaries that are relatively permanent, and wetlands adjacent to impoundments or tributaries which meet the significant nexus test; and
  • Intrastate lakes and ponds, streams, or wetlands not listed above which meet the relatively permanent test or the significant nexus test.

The 2023 rules specifically exclude the following from the WOTUS definition, though some activities may still be subject to Wisconsin rules:

  • Prior converted cropland;
  • Waste treatment systems;
  • Ditches (including roadside ditches) excavated wholly in and draining only dry land, and that do not carry a relatively permanent flow of water;
  • Artificially irrigated areas that would revert to dry land if the irrigation ceased.
  • Artificial lakes or ponds created by excavating or diking dry land, that are used exclusively for stock watering, irrigation, settling basins or rice growing;
  • Artificial reflecting pools or swimming pools, and other small ornamental water bodies created by excavating or diking;
  • Waterfilled depressions in dry land incidental to construction activity and pits excavated in dry land for obtaining fill, sand or gravel unless the construction is abandoned and the water body meets the definition of WOTUS; and
  • Swales and erosional features that are characterized by low volume, infrequent, or short duration flow.

Where is this Going?

While these new WOTUS rules become effective on March 20, 2023, the future of these new rules is in question as the U.S. Supreme Court is reviewing a case (Sackett v. EPA, 142 S. Ct. 896 (2022)) in which the legal sufficiency of the “significant nexus” test, in the context of wetland permitting, is under review. The Court’s opinion is expected to be issued after the 2023 rules becomes effective. Therefore, depending on the Court’s opinion related to the “significant nexus” test, it is possible that the 2023 rules may need to be revised. Further, in early March, a federal Congressional Committee (the House Transportation and Infrastructure Committee) approved a joint resolution to overturn the 2023 rules. In addition, several industry groups have filed suits to overturn the 2023 rules. These definitions have always been politically and scientifically contentious and we expect that to continue.

Due to the potential flux in which this new rule may ultimately be applied and considered, it will be increasingly important for the regulated public to keep abreast of which water bodies are ultimately determined to be classified as WOTUS, either by the agencies through regulation or guidance, by a U.S. Supreme Court decision in Sackett, and/or other legal or Congressional challenges. We will be tracking the implementation of this new rule by the agencies and related caselaw developments and Congressional challenges and will provide timely future Legal Updates. In the meantime, the extent of regulations of WOTUS – particularly wetlands – will continue to be very challenging.

Article By David P. Ruetz of von Briesen & Roper, s.c.

For more environmental legal news, click here to visit the National Law Review.

©2023 von Briesen & Roper, s.c

Administration’s WOTUS Rule Muddies Jurisdictional Waters

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have issued a new definition of “waters of the United States” (WOTUS), which becomes effective on March 20. The regulated community is watching this new definition of WOTUS because it will determine federal jurisdiction under the Clean Water Act.

For example, projects involving oil or natural gas development or pipeline construction require federal permitting for impacts from crossing, or otherwise disturbing, WOTUS. Generally speaking, the more impacts to such federally regulated streams and wetlands, the more complicated, expensive and lengthy the Corps Section 404 permitting.

In addition to determining the scope of federal permitting for the dredging/filling of streams and wetlands, the WOTUS definition also determines the scope of several other federal regulations, including regulations associated with National Pollutant Discharge Elimination System permitting, Spill Prevention, Control and Countermeasure plans and federal spill reporting. Although WOTUS is not defined in the CWA, the WOTUS definition appears in 11 different federal regulations.

Overview And Background

The agencies have promoted this final rule as establishing a “durable definition” that will “reduce uncertainty” in identifying WOTUS. However, this definition does not appear to provide much-needed clarity. Rather, generally speaking, the new definition codifies the approach that the agencies already have been informally utilizing to determine WOTUS, for example, relying on the definition of WOTUS from the late 1980s, as interpreted by subsequent U. S. Supreme Court decisions (such as the 2006 case, Rapanos v. United States). Challenges to the new definition are already underway.

The definition of WOTUS has been debated for nearly two decades, starting with several U. S. Supreme Court cases, which addressed the meaning of the 1980s WOTUS definition. This 1980s definition is very brief and is open to much interpretation because it does not include any defined terms. As discussed further below, rather than providing clarity, the U.S. Supreme Court decisions introduced additional uncertainty by offering more than one test for determining WOTUS.

Subsequently, Presidents Obama and Trump each introduced their own WOTUS definitions. President Barack Obama introduced the Clean Water Rule (CWR) in 2015, and President Donald Trump introduced the Navigable Waters Protection Rule (NWPR) in 2020.

Not surprisingly, the CWR entailed a broader interpretation of WOTUS, based heavily of Justice Anthony Kennedy’s significant nexus test in Rapanos, while the NWPR was based heavily on Justice Antonin Scalia’s “relatively permanent waters” test in Rapanos. Both the CWR and the NWPR were immediately and significantly challenged. Neither rule remains in effect.

Current Status

The Biden administration published its draft definition of WOTUS on Dec. 7. The final rule was published in the Federal Register on Jan. 18. The agencies’ approach to interpreting WOTUS relies heavily on both of the frequently discussed tests identified in the Rapanos decision. In Rapanos, Justice Scalia issued the plurality opinion, which held that WOTUS would include only “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and to “wetlands with a continuous surface connection to such relatively permanent waters” (such as adjacent wetlands).

Justice Kennedy, however, advanced a broader WOTUS interpretation in his concurring opinion, which was based on the concept of a “significant nexus” (for instance, wetlands should be considered as WOTUS “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered water”). President Biden’s new definition directly quotes and codifies these tests as regulations that may be relied upon to support a WOTUS determination.

While this new WOTUS definition may not be, conceptually, a significant change to how the agencies regulate streams and wetlands, the new definition may expand the agencies’ interpretation of a wetland that is “adjacent” to a WOTUS, through its lengthy discussion of adjacent wetlands in the final rule’s preamble.

The new definition also may expand how the agencies determine whether a water body will “significantly affect” a WOTUS, by providing a definition of “significantly affect,” which enumerates five factors to assess and five functions to consider in evaluating whether a potentially unregulated water will have a “material influence” on a traditionally navigable water.

Factors include distance from the traditionally navigable water, hydrologic factors and climatological variables. Functions include contribution of flow and retention and attenuation of runoff. Both the factors and the functions are broad and open to interpretation, which may lead to the agencies asserting jurisdiction over more water bodies. The new definition also codifies that the effect of the potentially regulated water must be evaluated alone “or in combination with similarly situated waters in the region,” which likely will broaden how the agencies evaluate the potential regulation of ephemeral and isolated water bodies.

Supreme Court And Congress

Publication of this definition, at this time, is likely a preemptive move by the agencies in advance of the Supreme Court’s impending decision in Sackett v. EPA, a case in which the court will, again, weigh in on the definition of WOTUS.

In Sackett, landowners in Idaho have had a long-standing challenge to an administrative order issued against them for allegedly filling wetlands without a permit. The Sacketts assert that Justice Kennedy’s significant nexus test in Rapanos is not the appropriate test to delineate wetlands as WOTUS, and that, under the test identified by Justice Scalia, the wetlands on their property are not WOTUS.

In 2021, the U.S. Court of Appeals for the Ninth Circuit ruled against the Sacketts’ position and held that the “significant nexus” test in the Kennedy concurrence was the controlling opinion from Rapanos. The Sacketts petitioned the U.S. Supreme Court to consider whether Rapanos should be revisited to adopt the plurality’s test for wetland jurisdiction under the CWA. However, the Supreme Court instead will consider the narrow issue of whether the Ninth Circuit “set forth the proper test for determining whether wetlands are WOTUS.”

Some have speculated that the U.S. Supreme Court’s opinion may support a narrower interpretation of WOTUS than the agencies have been implementing. For example, if the court narrows or eliminates the “significant nexus” test, the decision will create even more uncertainty in identifying WOTUS and may invalidate the Biden administration’s definition. The Sackett opinion is expected by this summer.

In a letter dated Jan. 30, 25 Republican governors asked President Biden to delay implementation of the new WOTUS definition until the U.S. Supreme Court issued the Sackett decision. The governors oppose the new definition and claim that it is, among other things, ill-timed, burdensome and overbroad. The governors assert that delaying implementation of the new definition until after the issuance of the Sackett decision will minimize the number of changes to the definition in a short time. The governors stated that multiple revisions would “impose an unnecessary strain on farmers, builders and every other impacted sector of the American economy.”

Consistent with the sentiments of the Republican governors, in early February, Republican members of Congress, led by Senator Shelley Moore Capito, R-W.V., and representatives Sam Graves, R-Mo., and David Rouzer, R-N.C., announced that they intended to use the Congressional Review Act to formally challenge the new WOTUS definition through a joint resolution of disapproval. The hearing was held on Feb 8.

The CRA provides Congress a mechanism to vote to disapprove agency rules that go beyond the authority Congress granted to federal agencies and to send the resolution to the president, who can approve or veto the resolution. If passed, the joint resolution of disapproval could invalidate the rule and prohibit an agency from issuing a rule that is in substantially the same form without further congressional authorization. President Biden is expected to veto any such joint resolution of disapproval.

Consistent with Obama’s CWR and Trump’s NWPR, the new WOTUS definition already has been challenged in the U.S. District Court of the Southern District of Texas by Texas and 18 industry groups, including the American Petroleum Institute, claiming that the new definition is “unworkable” and in conflict with the CWA (see accompanying story, page 30). These challenges may result in the stay or vacatur of the new definition. If this occurs, the agencies may, again, revert back to the current WOTUS definition.

Article By Lisa M. Bruderly of Babst, Calland, Clements & Zomnir, P.C.

For more environmental legal news, click here to visit the National Law Review.

© Copyright Babst, Calland, Clements and Zomnir, P.C.

EPA and Army Corps Issue New “WOTUS” Rule While Supreme Court Considers Jurisdiction Over Adjacent Wetlands

Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA).  This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS.  The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR).  In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test).  The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters.  The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.

For project proponents, the new rule would likely mean more features would be subject to regulation under the CWA, and projects that might have previously qualified for nationwide permits may no longer meet the acreage limits and would instead require an individual permit.  Also, case-by-case significant nexus determinations could result in lengthy reviews with uncertain and inconsistent results.

The final rule will go into effect on March 20.  While the Agencies previously characterized this rule as Phase 1 of a two-step process to enact a new WOTUS definition, EPA recently indicated that it is not currently planning a major second phase.

Summary of Final Rule

The rule defines WOTUS to include:

  1. Traditional navigable waters (TNWs), the territorial seas, and interstate waters.  TNWs include large rivers and lakes and tidally influenced waterbodies used in interstate or foreign commerce.  Interstate waters are rivers, lakes, and other waters that flow across, or form part of, State boundaries.  The TNW definition (i.e., all waters currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide) is consistent with the text of the 1986 regulations and the NWPR.  However, the preamble indicates that the Agencies plan to include “waters currently being used for … commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments),” which appears to broaden the scope of TNW waters.
  2. Impoundments of WOTUS.  The final rule retains the provision in the 1986 regulations that defines WOTUS to include impoundments of WOTUS.  The preamble defines impoundments as “created by discrete structures (often human-built) like dams or levees that typically have the effect of raising the water surface elevation, creating or expanding the area of open water, or both.”  88 Fed. Reg. at 3,066.
  3. Tributaries.  The final rule extends jurisdiction to tributaries of categories 1 and 2 waters if the tributary meets either the Agencies’ new formulation of the relatively permanent or the significant nexus standards from Rapanos (discussed in more detail below).  Ephemeral streams that meet the significant nexus test would be jurisdictional tributaries.  In this respect, the rule is much broader than the NWPR, which categorically excluded ephemeral tributaries from jurisdiction.
  4. Adjacent wetlands.  The rule retains the definition of “adjacent” from the 1986 regulations meaning “bordering, contiguous, or neighboring” and adds language that adjacent wetlands are considered WOTUSifthey meet the relatively permanent or significant nexus standards.  The NWPR had narrowed the definition of adjacent wetlands to include only those wetlands that abutted or otherwise had a direct surface connection to other jurisdictional waters in a typical year.  The final rule creates a broader category of adjacent wetlands, leading to additional regulatory requirements for activities that cross or impact such features.
  5. Other waters.  The rule asserts jurisdiction over “other waters” under the relatively permanent and significant nexus standards from Rapanos.  Under this provision, which essentially serves as a “catch-all” category, “intrastate lakes and ponds, streams, or wetlands” not identified in categories 1-4 can be assessed for jurisdiction under the relatively permanent standard or significant nexus standard.  This list is intended to be exclusive, 88 Fed. Reg. at 3,100, but broad enough to include a large variety of water types (e.g., prairie potholes, sloughs, playa lakes, etc.).  This category is a clear departure from the 2008 Rapanos Guidance, which did not assert jurisdiction over “other waters” based on the relatively permanent waters or significant nexus standards.

Exclusions.  The final rule provides a list of features that are excluded even where they would otherwise qualify as jurisdictional impoundments, tributaries, adjacent wetlands, or other waters.  Importantly, features that qualify as category 1 waters (TNWs, territorial seas, and interstate waters) cannot be excluded even if they meet the criteria of the exclusions provided.  Key non-jurisdictional waters or exclusions include waste treatment systems, ditches, prior converted cropland, artificially irrigated areas, artificial lakes or ponds, and swales and erosional features.  The list of exclusions is similar to the list provided in the 2015 WOTUS Rule and 2020 NWPR, although it does not provide the clear definitions that were included in the NWPR and in some instances changes the exemption based on preamble interpretations.

Key Definitions. The rule also includes a number of important definitions.

  • The “relatively permanent standard” asserts jurisdiction over relatively permanent, standing or continuously flowing waters connected to category 1 waters, and waters with a continuous surface connection to such relatively permanent waters or to category 1 waters.  88 Fed. Reg. at 3,006.  The final rule does not define or quantify what constitutes “relatively permanent” flow.  The preamble states that the relatively permanent standard encompasses surface waters that have flowing or standing water year-round or continuously during certain times of the year.  88 Fed. Reg. at 3,084.
  • The significant nexus standard asserts jurisdiction over waters that, either alone or in combination with similarly situated waters in the region, significantly affectthe chemical, physical, or biological integrity of category 1 waters.  In a change from the proposal, the final rule defines “significantly affect” to mean “a material influence on the chemical, physical, or biological integrity of [category 1] waters.”  To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of category 1 waters, the Agencies will assess the  list of functions and factors, including, for example contribution of flow, distance from a category 1 water, and hydrologic connections.  The preamble states distance from a category 1 water and hydrology—will generally be given the greatest weight in the assessment.  88 Fed. Reg. at 3,120.  The new significant nexus standard will likely allow for broader assertions of jurisdiction because it allows the Agencies to aggregate all tributaries and adjacent wetlands within a particular geographic area and evaluate whether they have a “material influence” on category 1 waters based on a case-by-case application of the enumerated factors and functions.  This type of case-by-case significant nexus analysis has resulted in lengthy review times as well as unpredictable and inconsistent results.

Existing Jurisdictional Determinations

Landowners may obtain a jurisdictional determination in the form of either: (1) an approved jurisdictional determination (AJD), which is a Corps document identifying the limits of WOTUS on a parcel; or (2) a preliminary jurisdictional determination (PJD), which is a non-binding document in which an applicant can assume all waters will be treated as jurisdictional without making a formal determination.

The Agencies take the position that AJDs issued pursuant to the NWPR may not be relied upon in making new permit decisions.  According to the preamble, because the NWPR was vacated by two district courts, NWPR AJDs “may not reliably state the presence, absence, or limits of [WOTUS] on a parcel and will not be relied upon by the Corps in making new permit decisions.”  88 Fed. Reg. at 3,136.  The Agencies take the position that AJDs issued under earlier WOTUS definitions—except those AJDs issued under the NWPR—remain valid until the AJD’s expiration date.  Also, the new rule will govern any pending requests for AJDs, if the AJD is issued on or after the effective date of the rule (March 20, 2023).

In contrast to AJDs, PJDs are advisory in nature and have no expiration date.  The preamble clarifies that the new WOTUS rule has no impact on existing PJDs.

Potential Litigation and the Sackett Case

Multiple challenges to the new rule are likely to be filed in district courts across the country.  The state of Texas and an industry coalition immediately filed suits in the U.S. District Court for the Southern District of Texas, and other suits are likely.  At the same time, the Supreme Court’s pending decision in Sackett may have implications for the durability of provisions of the rule.

Many commenters recommended that the Agencies defer issuing a final rule until the Supreme Court issues a decision in Sackett—a case in which the issue before the Court is “the proper test for determining whether wetlands are [WOTUS] under the [CWA].”  A decision in the Sackett case is expected in the next few months.  Perhaps trying to insulate the rule from a potentially unfavorable Supreme Court decision, the Agencies assert in the preamble the severability of the individual provisions of the rule.  The preamble states, “if a court were to determine that a wetland cannot be treated as adjacent if it is separated from a jurisdictional water by road or other barrier, the agencies intend that other categories of wetlands within the rule’s definition of ‘adjacent’ would remain subject to jurisdiction.”  88 Fed. Reg. at 3,135.  Although it is not clear how the Supreme Court will rule in Sackett, it is possible that the decision could require the Agencies to make changes to the new WOTUS definition or face legal challenges.

Article By Kerry L. McGrath, Brian R. Levey, Andrew J. Turner, Karma B. Brown, Deidre G. Duncan, and Matthew Z. Leopold of Hunton Andrews Kurth

For more environmental legal news, click here to visit the National Law Review.

Copyright © 2023, Hunton Andrews Kurth LLP. All Rights Reserved.

Navigable Waters Protection Rule Substantially Narrows the Scope of Waterbodies Subject to Regulation under the Clean Water Act

On January 23, 2020, the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (the “Corps”) (collectively the “Agencies”) released a final rule re-defining the term “waters of the United States” as applied under the Clean Water Act (“Final Rule”).

The Final Rule substantially narrows the scope of waterbodies subject to regulation under the Clean Water Act—notably removing interstate streams as a separate jurisdictional category; excluding ephemeral streams and water features; requiring rivers, streams and other natural channels to directly or indirectly contribute flow to a territorial sea or traditional navigable water; and excluding wetlands that are not adjacent to another non-wetland jurisdictional water. Further, the Agencies confirm that groundwater is not subject to regulation under the Clean Water Act and, consequently, that surface water features connected only via groundwater likewise are not jurisdictional. In support of this narrower scope, the Agencies explain that states and tribes retain the authority to regulate non-jurisdictional waters within their authority, provided those states and tribes deem such regulation appropriate.

The Final Rule replaces the definition of “waters of the United States” adopted under a 2015 Obama-era “WOTUS Rule” (the “2015 WOTUS Rule”), which was formally repealed by the Agencies on October 22, 2019.  As explained in previous Van Ness Feldman alerts, the 2015 WOTUS Rule expanded federal control over several types of waterbodies, particularly with respect to tributaries, adjacent waters, and wetlands. 2015 WOTUS Rule has been subject to numerous legal challenges. These challenges resulted in a patchwork regulatory regime where application of the 2015 WOTUS Rule was enjoined from implementation in 28 states, while the remaining 22 states were subject to the more expansive regulatory definition of the “waters of the United States.”

The Agencies have described the Final Rule as providing “consistency, predictability, and clarity,” as well as appropriately recognizing state and tribal regulatory authority.  The Final Rule pulls from three Supreme Court opinions in United States v. Riverside Bayview Homes (Riverside Bayview), Solid Waste Agency of Northern Cook County v. United States (SWANCC), and Rapanos v. United States (Rapanos) to adopt a unifying legal theory to define “waters of the United States” based on sufficient surface water connections with downstream traditional navigable waters and territorial seas.  In adopting a unifying interpretive approach, the Agencies explicitly eliminate the case-specific application of their previous interpretation of Justice Kennedy’s significant nexus test in what was called their “Rapanos Guidance.”

Under the Final Rule, the overall categories of jurisdictional and excluded waters, in many ways, are similar to the existing regulatory scheme.  As a practical matter, however, the Final Rule substantially narrows the scope of waterbodies subject to regulation under the Clean Water Act.  The Agencies classify jurisdictional and excluded waters as follows:

The Agencies will primarily rely on states and tribes to regulate non-jurisdictional waters within their authority, provided those states and tribes deem such regulation appropriate.

Among the Final Rule’s most significant changes from the 2015 WOTUS Rule’s definition of federally regulated waters of the United States are the exclusions of ephemeral streams and wetlands that are not adjacent to another non-wetland jurisdictional water.  Another notable element is the Agencies’ confirmation that groundwater is not subject to regulation under the Clean Water Act and, consequently, that surface water features connected only via groundwater likewise are not jurisdictional.

The Final Rule also provides definitions for key terms and offers guidance on their intended application of the regulated and non-regulated categories of waters.  Key issues addressed by the Agencies include:

  • “Tributary” is defined as a river, stream, or similar naturally occurring surface water channel that contributes surface water flow to a territorial sea or traditional navigable water in a typical year directly or through another jurisdictional water.  A tributary must be perennial or intermittent in a typical year.  The Agencies also explain that a tributary does not lose its jurisdictional status if it contributes surface water flow to a downstream jurisdictional water in a typical year through a channelized non-jurisdictional surface water feature, through a subterranean river, culvert, dam, tunnel or similar artificial feature, or through a debris pile, boulder field or similar natural features.  Tributaries include ditches that relocate a tributary, were constructed in a tributary, or are constructed in an adjacent wetland and have surface flow to the downstream jurisdictional water.
  • Certain delineation determinations will require the presence of the necessary jurisdictional features in a “typical year,” i.e., defined as “when precipitation and other climatic variables are within the normal periodic range (e.g. seasonally, annually) for the geographic area of the applicable aquatic resource based on a rolling thirty-year period.”
  • Ditches are not included as a separate category of jurisdictional waters, but instead are included in the definition of tributary.  Ditches that are constructed in, or that relocate, a tributary or that are constructed in adjacent wetlands are included as a tributary and are jurisdictional if the flow in the ditch is perennial or intermittent during a typical year and that flow reaches a traditional navigable water or territorial sea.  The Preamble notes that the majority of ditches used to drain surface and shallow subsurface water from croplands are expected to be non-jurisdictional.
  • Lakes, ponds and other impoundments do not lose their jurisdictional status if they contribute surface water flow to a downstream jurisdictional water through a culvert, dike, pipe, spillway, tunnel or other artificial feature or through a natural feature such as a debris pile or boulder field.  However, lakes, ponds and impoundments that are connected downstream to jurisdictional waters only by diffuse stormwater runoff or directional sheet flow over upland areas are not jurisdictional.  An ecological connection between a lake, pond or impoundment is insufficient to establish federal jurisdiction.
  • An impoundment must have a surface water connection to a downstream jurisdictional water in order to be regulated.  The downstream surface water connection does not need to be natural but may be through any manner of artificial features (tunnels, culverts, spillways, etc.).  However, lakes, ponds and impoundments that lose water only through evaporation, underground seepage or consumptive use are no longer considered jurisdictional waters.
  • Adjacent wetland are defined as wetlands that either:   (i) abut a territorial sea, traditional navigable water, or regulated lake, pond, or impoundment; (ii) are inundated by flooding from one of these jurisdictional waters; (iii) are physically separated from one of these waters by a natural berm, bank, dune or similar natural feature; or (iv) are physically separated from one of these waters by an artificial dike, barrier or other structure, including a road, that allows for a direct hydrologic surface connection with the regulated water in a typical year (such as through a culvert, flood or tide gate, pump or similar feature).  Application of these categories still requires further context to the relevant connections.  For example, the Agencies explain that a subsurface connection through porous soils is insufficient to establish jurisdiction over a wetland separated by an artificial structure, such as a dike.  Likewise, if the surface flow between the wetland and the abutting jurisdictional water across, or through, a dike or other artificial barrier only occurs after a 100-year storm event, this would not be sufficient to establish jurisdiction because the surface water connection would not occur once during a typical year.  Finally, the Final Rule eliminates the prior definition of “adjacent”—which had included the terms “bordering, contiguous, or neighboring.”  The elimination of the prior “adjacent” definition further limits the regulatory reach over wetlands under the Final Rule.

For each category of regulated waters, the Preamble in the Final Rule provides guidance on how the Final Rule will be implemented.  Issues of implementation also are addressed in an “Implementation Statement” that was concurrently issued by the Agencies.

Lawsuits challenging this Final Rule are expected, likely resulting in continuing uncertainty, and, potentially, a further state-by-state patchwork of regulation, until these cases ultimately are addressed by the Supreme Court.  For now, however, project and resource developers should carefully consider how the Final Rule may affect their permitting obligations for proposed development and work in or near waterbodies and wetlands.

© 2020 Van Ness Feldman LLP

For more on WOTUS & the Clean Water Act, see the National Law Review Environmental, Energy & Resources page.

After Shutdown, US EPA Announces New Hearing Date for the New WOTUS Rule

As a result of the recent lapse in appropriations, the US EPA and US Department of the Army (Army) delayed a planned January 23, 2019 hearing regarding the proposed new “Waters of the United States” (WOTUS) definition. Publication of the proposed rule and the start of the comment period on the rule were also postponed due to the shutdown. On February 6, 2019, EPA announced that the hearing will now be held on February 27 and 28, 2019.   The Office of the Federal Register has not yet published the proposed rule, which will start the clock on the 60-day comment period.

Because it determines the scope of the Clean Water Act, the definition of “waters of the United States” has been a hot-button issue since it was amended, and significantly broadened, by the Obama administration in mid-2015.  The 2015 rule was challenged by 31 states and numerous other stakeholders in multiple lawsuits. In October 2015, the Sixth Circuit issued a nationwide stay of the rule. The nationwide stay was lifted when the US Supreme Court determined on January 13, 2017, that review of the rule falls within the jurisdiction of the district courts.   Although the nationwide stay is no longer in effect, decisions by the US District Courts for the Districts of North Dakota, Southern District of Georgia, and Southern District of Texas, preliminarily enjoining the 2015 rule in 28 states remain in effect. Thus, the Obama-era rule is in effect in only 22 states, the District of Columbia, and US territories.

In an effort to eliminate or narrow the Obama-era rule and reestablish a consistent nationwide rule, on December 11, 2018, the US EPA and the Army signed a newly proposed rule revising the WOTUS definition. The proposed rule is part of the agencies’ two-step plan to remove and replace the 2015 rule, which the agencies believe exceeds US EPA’s statutory authority. The first step, a rule which suspended the application of the 2015 rule, was enjoined and vacated by two district courts. Despite this roadblock, the agencies moved forward with step two and submitted the new proposed definition rule to the Office of the Federal Register. However, due to the shutdown, it has not yet been published. The 60-day comment period for the rule will begin on the date of publication.

Under the proposed rule “waters of the United States” encompasses “traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.” Importantly, the agencies propose to eliminate the case-by-case application of the significant nexus test, which under the 2015 rule extends the definition of WOTUS to water, including wetlands, that “significantly affects the chemical, physical, or biological integrity of a water.” The agencies propose instead “the establishment of clear categories of jurisdictional waters.”

The new WOTUS definition would also exclude from regulation some tributaries and waters adjacent to jurisdictional waters. The 2015 rule extends to adjacent waters that are bordering, contiguous or neighboring a jurisdictional water, which broadly encompasses any water within 100 feet of a jurisdictional water or water located within the 100-year floodplain of a jurisdictional water. By contrast, the proposed rule includes only adjacent wetlands that “abut or have a direct hydrological surface connection” to a water. Under the 2015 Obama-era rule, a tributary is a water that contributes flow to a jurisdictional water. The proposed rule eliminates ephemeral flows from being considered a tributary, requiring a water that contributes at least “perennial or intermittent flow.” Given these and other significant differences between the two rules, once published, the proposed rule is certain to draw intense debate over the proper reach of the Clean Water Act.

US EPA is not alone in experiencing delays, as the federal rulemaking process ground to a halt during the shutdown. The Office of the Federal Register (OFR) issued “Government Shutdown FAQs,” stating that in an appropriations lapse the OFR may publish documents from unfunded agencies “directly related to the performance of governmental functions necessary to address imminent threats to safety of human life or protection of property.”   And, in the case of a partial shutdown, where some agencies are funded, the OFR may publish documents from funded agencies “if delaying publication until the end of the appropriations lapse would prevent or significantly damage the execution of funded functions at the agency.”

 

© Copyright 2019 Squire Patton Boggs (US) LLP
This post was written by Weslynn P. Reed of Squire Patton Boggs (US) LLP.
For more environmental legislative and regulatory news check out the National Law Review’s Environmental Type of Law Page.

U.S. Court of Appeals Issues Split WOTUS Ruling

On February 22, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (Cincinnati) issued a split 2-1 decision, ruling that it has jurisdiction to proceed with challenges to the Obama administration’s “Waters of the United States” rule, or WOTUS, as opposed to federal district courts. A wide range of government, industry and agriculture interests have filed lawsuits in several district courts across the U.S. challenging the WOTUS rule.

The decision came in the form of three separate opinions, as each judge had a different view of the law on this complex issue. Two judges concluded that the appellate court has jurisdiction over the legal challenges to the WOTUS rule; the third judge concluded that the appellate court lacks jurisdiction over these cases.

It is speculated that the split decision makes it very likely that the state and industry petitioners will seek en banc review of the ruling, meaning that it would go to rehearing before the entire Sixth Circuit for additional review. Challengers will need to petition the court within 45 days to request rehearing.

The decision, which does not answer the legality of the WOTUS rule, but rather which court has authority to review it, means that stay of the WOTUS rule issued last year by the Sixth Circuit will continue in effect until further rulings.

The decision could also be appealed, potentially to the U.S. Supreme Court.

Article By Aaron M. Phelps of Varnum LLP

© 2016 Varnum LLP

Agriculture, Food, and Health Issues to Watch for 2016

Label Food Organic.jpgAs the agriculture and food industries head into the new year, a number of important cases and regulatory issues that have the potential to dramatically affect the industry are front and center. Below, an overview of the status of several of the key cases and issues that related industries should keep an eye on during 2016.

Waters of the United States

On October 9, 2015, following an earlier ruling by the U.S. District Court for the District of North Dakota, the United States Circuit Court for the Sixth Circuit issued a nationwide stay of the so-called “Waters of the United States” or “WOTUS” rule. The stay halted implementation of the WOTUS rule, pending resolution of jurisdictional issues that were the subject of oral argument on December 8, 2015. Those jurisdictional issues are focused on whether the Sixth Circuit is the proper venue to hear challenges to the rule. A ruling is expected in 2016.

A number of district court cases across the country also remain pending, and the District of North Dakota’s earlier injunction against implementation of the WOTUS rule in 13 states, including Missouri, remains in place.

Vermont Act 120

On October 8, 2015, the U.S. Circuit Court of Appeals for the Second Circuit heard oral argument of an appeal filed by the Grocery Manufacturers Association and other plaintiffs seeking review of the U.S. District Court for the District of Vermont’s denial of their Motion for Preliminary Injunction on April 27, 2015. The motion sought a preliminary injunction enjoining implementation of Vermont Act 120, passed on May 8, 2014, with an effective date of July 1, 2016. Act 120 would, among numerous provisions, mandate new labeling requirements on the part of manufacturers and other food processors for any food that is “produced with genetic engineering,” “partially produced with genetic engineering,” or “may be produced with genetic engineering.” Violators of Act 120 are subject to civil penalties of up to $1,000 per day, per product.

A decision is expected in the first two quarters of 2016 in advance of the July 1, 2016, effective date of the law.

Federal Activity Regarding GMOs and the Safe and Accurate Food Labeling Act

The U.S. House of Representatives passed the Safe & Accurate Food Labeling Act (SAFL) on July 23, 2015. The SAFL Act would, among other things, serve to pre-empt any state laws governing labeling of GMO-containing food products, including Vermont’s Act 120 due to become effective on July 1, 2016. Despite pressure on the U.S. Senate to address the SAFL Act and pass a companion or similar bill before the end of 2015, efforts to include any such bill or related provisions in the year-end omnibus spending bill were unsuccessful. Senate Agricultural Committee Group leaders, including Sen. Debbie Stabenow, D-Mich., have pledged to make the issue a top priority in January 2016, and many expect Sen. John Hoeven, R-N.D., to play a role in trying to secure passage of a bipartisan bill.

Food Safety Modernization Act Roll-Out

The Food Safety Modernization Act (FSMA) was signed into law on January 4, 2011, and represents the most comprehensive overhaul of the U.S. food safety regulatory scheme since the passage of the Food, Drug and Cosmetic Act in 1938. For nearly five years, the U.S. Food and Drug Administration (FDA) has been developing the seven final rules that implement FSMA. Each final rule impacts a different fundamental area of the U.S. food system.

In September and November 2015, the FDA issued the first five of the seven final rules: (1) Preventive Controls for Human Food; (2) Preventive Controls for Animal Food; (3) Foreign Supplier Verification Program; (4) Standards for Produce Safety; and (5) Accredited Third-Party Certification. The issuance of these rules initiates the countdown for the relevant compliance deadlines for covered entities.

It is anticipated that the final two FSMA rules regarding Sanitary Transportation and Intentional Adulteration will be issued on March 31, 2016. The Sanitary Transportation final rule will establish criteria for the sanitary transportation of food, including criteria targeted at shipping conditions and practices, employee training, and record keeping. The Intentional Adulteration final rule will require domestic and foreign food processing facilities to address vulnerabilities in their operations to prevent acts on the food supply intended to cause large-scale public harm. In 2016, the FDA will also be working with certain alliance groups to further develop FSMA compliance and enforcement guidance.

FDA Menu Labeling Requirements

Section 4205 of the Affordable Care Act charges the FDA with establishing labeling requirements for certain retail food establishments and vending machines. On December 1, 2014, the FDA issued two rules requiring calorie information to be listed on menus and menu boards at retail food establishments if they are a part of a chain of twenty or more locations operating under the same name and offering for sale substantially the same restaurant-type food items.

In July 2015, the FDA announced that the compliance deadline for the menu labeling rule was being extended by one year. All covered establishments (e.g., restaurants, grocery stores, and gas station convenience stores) now have until December 1, 2016, to identify calorie count and other information on their menus and menu boards as required by the FDA menu labeling rules.

Article By Laura A. Bentele, Scott K.G. Kozak & Jonathan D. Valentino of Armstrong Teasdale
© Copyright 2016 Armstrong Teasdale LLP. All rights reserved

EPA and U.S. Army Corps of Engineers Approve New Definition of "Waters of the United States"

The U.S. EPA and the U.S. Army Corps of Engineers announced today that they have jointly approved a new definition of the key term “waters of the United States,” a term that defines the limits of federal jurisdiction over surface waters under the Clean Water Act and several other federal laws. The rule containing the new definition will become effective 60 days after its publication in the Federal Register, which typically occurs within a week or so of the agencies’ public announcement of a new rule.

The agencies announced the new rule after several years of wrestling with this regulatory definition, which establishes the scope of federal wetlands permitting authority, federal discharge limitations, and other important programs. EPA and the Corps assert in the preamble to the rule that this new definition is “narrower” than the existing regulatory definition, and that “fewer waters will be defined as ‘waters of the United States'” than under existing regulations. In the debate leading up to today’s announcement, however, a variety of affected parties – landowners, developers, farmers, manufacturers and others – have argued that the agencies’ effort to redefine “waters of the United States” will lead to a broadening of federal jurisdiction.

Several features of the new rule are of particular importance to interested parties in California and other western arid states:

  • All “tributaries” are jurisdictional (i.e., subject to federal regulation) “by rule” if they have an ordinary high water mark and a “bed and bank” and if those features can be shown to be hydrologically linked to navigable waters or interstate waters. The “by rule” designation means that it will no longer be necessary for the agencies to establish that a tributary has a significant link to a navigable water, regardless of how attenuated that connection might be. There are no threshold requirements for volume of water nor for frequency of flow. By way of example, it appears that a “tributary” that is miles removed from the closest river, lake or ocean, with only a trickle of flow that occurs once every 10 years or more, will nevertheless be deemed jurisdictional as long as there is physical evidence of a “bed and bank” and an ordinary high water mark.

  • Certain “adjacent wetlands” are now also jurisdictional “by rule” if, for example, they are located in a 100-year floodplain and are within 1,500 feet of a “traditional navigable water” (e.g., a river, lake, or ocean) or of a tributary.

  • Case-by-case determinations of whether an aquatic feature has a “significant nexus” to a navigable water – thereby rendering it jurisdictional – will continue to be made for a variety of different waterbody types, including “western vernal pools in California” and any surface water feature within the 100-year floodplain or within 4,000 feet of a navigable water or covered tributary that is not already defined as jurisdictional by the “by rule” standard. The term “significant nexus” is given some definition in the final rule by reference to a familiar list of functional ecosystem values served by wetlands and other water bodies.

The final rule does call out a narrow class of “waters” that are determined not to be jurisdictional as “waters of the United States,” including, but not limited to,

  • certain types of ditches;

  • artificially irrigated areas that would revert to dry land should the irrigation cease;

  • erosional features, including gullies, rills, non-wetland swales;

  • groundwater, including groundwater drained through subsurface drainage systems;

  • stormwater control features

  • swimming pools, ornamental waters created in dry land, “puddles.”

Added to this list is a statement in the preamble to the final rule that it does not “regulate shallow subsurface connections nor any type of groundwater.”

Importantly, this rule applies only to new jurisdictional determinations that are required after the rule’s “effective date.” The agencies will not reopen existing approved jurisdictional determinations unless the usual conditions apply for a revision of the determination.

Implementation of this rule will be far more complicated and detail-driven than what can possibly be captured here in this very brief synopsis. It is hard to calculate its impact on the regulated community, especially in places like California where the Corps and EPA have traditionally taken a very aggressive approach to their claims of jurisdiction. At the very least, this rule will bolster those claims by giving the agencies a formal regulation to rely upon. Litigation challenging this rule has been threatened for months, and certain Members of Congress have vowed to do what they can to take legislative action.

ARTICLE BY James T. Burroughs & David D. Cooke of Allen Matkins Leck Gamble Mallory & Natsis LLP

© 2010-2015 Allen Matkins Leck Gamble Mallory & Natsis LLP

EPA and U.S. Army Corps of Engineers Approve New Definition of “Waters of the United States”

The U.S. EPA and the U.S. Army Corps of Engineers announced today that they have jointly approved a new definition of the key term “waters of the United States,” a term that defines the limits of federal jurisdiction over surface waters under the Clean Water Act and several other federal laws. The rule containing the new definition will become effective 60 days after its publication in the Federal Register, which typically occurs within a week or so of the agencies’ public announcement of a new rule.

The agencies announced the new rule after several years of wrestling with this regulatory definition, which establishes the scope of federal wetlands permitting authority, federal discharge limitations, and other important programs. EPA and the Corps assert in the preamble to the rule that this new definition is “narrower” than the existing regulatory definition, and that “fewer waters will be defined as ‘waters of the United States'” than under existing regulations. In the debate leading up to today’s announcement, however, a variety of affected parties – landowners, developers, farmers, manufacturers and others – have argued that the agencies’ effort to redefine “waters of the United States” will lead to a broadening of federal jurisdiction.

Several features of the new rule are of particular importance to interested parties in California and other western arid states:

  • All “tributaries” are jurisdictional (i.e., subject to federal regulation) “by rule” if they have an ordinary high water mark and a “bed and bank” and if those features can be shown to be hydrologically linked to navigable waters or interstate waters. The “by rule” designation means that it will no longer be necessary for the agencies to establish that a tributary has a significant link to a navigable water, regardless of how attenuated that connection might be. There are no threshold requirements for volume of water nor for frequency of flow. By way of example, it appears that a “tributary” that is miles removed from the closest river, lake or ocean, with only a trickle of flow that occurs once every 10 years or more, will nevertheless be deemed jurisdictional as long as there is physical evidence of a “bed and bank” and an ordinary high water mark.

  • Certain “adjacent wetlands” are now also jurisdictional “by rule” if, for example, they are located in a 100-year floodplain and are within 1,500 feet of a “traditional navigable water” (e.g., a river, lake, or ocean) or of a tributary.

  • Case-by-case determinations of whether an aquatic feature has a “significant nexus” to a navigable water – thereby rendering it jurisdictional – will continue to be made for a variety of different waterbody types, including “western vernal pools in California” and any surface water feature within the 100-year floodplain or within 4,000 feet of a navigable water or covered tributary that is not already defined as jurisdictional by the “by rule” standard. The term “significant nexus” is given some definition in the final rule by reference to a familiar list of functional ecosystem values served by wetlands and other water bodies.

The final rule does call out a narrow class of “waters” that are determined not to be jurisdictional as “waters of the United States,” including, but not limited to,

  • certain types of ditches;

  • artificially irrigated areas that would revert to dry land should the irrigation cease;

  • erosional features, including gullies, rills, non-wetland swales;

  • groundwater, including groundwater drained through subsurface drainage systems;

  • stormwater control features

  • swimming pools, ornamental waters created in dry land, “puddles.”

Added to this list is a statement in the preamble to the final rule that it does not “regulate shallow subsurface connections nor any type of groundwater.”

Importantly, this rule applies only to new jurisdictional determinations that are required after the rule’s “effective date.” The agencies will not reopen existing approved jurisdictional determinations unless the usual conditions apply for a revision of the determination.

Implementation of this rule will be far more complicated and detail-driven than what can possibly be captured here in this very brief synopsis. It is hard to calculate its impact on the regulated community, especially in places like California where the Corps and EPA have traditionally taken a very aggressive approach to their claims of jurisdiction. At the very least, this rule will bolster those claims by giving the agencies a formal regulation to rely upon. Litigation challenging this rule has been threatened for months, and certain Members of Congress have vowed to do what they can to take legislative action.

ARTICLE BY James T. Burroughs & David D. Cooke of Allen Matkins Leck Gamble Mallory & Natsis LLP

© 2010-2015 Allen Matkins Leck Gamble Mallory & Natsis LLP