2023 EPA WOTUS RULEMAKING
Waters of the United States - 2023
What changed? The new rulemaking changes from the Trump era navigable waters (NWPR) basis to a standard that includes both the “significant nexus” and relatively permanent” standards. These standards come from the two Supreme Court opinions from the 2006 Rapanos vs United States case. Kennedy’s opinion contained the nexus standard and Scalia’s the relatively permanent standard.
The "significant nexus” standard refers to the test to identify waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.
The "relatively permanent" test set out by Justice Antonin Scalia for the plurality requires a permanent hydrologic connection to traditionally navigable waters, thereby excluding channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.
The preamble to the new WOTUS Rule attempts to argue that the NWPR was inconsistent with the CWA, arguing primarily that the NWPR did not appropriately acknowledge or take account of the effects of a changing climate on the chemical, physical, and biological integrity of the nation's waters, and that the exclusions were too broad. Additionally, that there were two opinions in Rapanos, the WOTUS Rule allows the agencies to assert jurisdiction over waters that meet either the "significant nexus" or the "relatively permanent".
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 the traditionally navigable waters, the WOTUS Rule requires consideration of a wide array of "functions" such as: contribution of flow; trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants); retention and attenuation of floodwaters and runoff; modulation of temperature; provision of habitat and food for aquatic species located in traditionally navigable waters; as well as "factors" such as distance from a navigable water, frequency, duration, magnitude, timing and rate of hydrologic connections, including shallow subsurface flow, size, density or number of waters that have been determined to be similarly situated, landscape position and climatological variables such as temperature, rainfall and snowpack.
The new rule also provides limited guidance to landowners on jurisdictional determinations including "steps" a landowner can take to determine if a jurisdictional water is present or a permit is required. Clearly, a consulting firm will be required to work through issues such as the significant nexus test placing the financial and legal burden upon the landowner. The NWPR placed the burden on the agencies to determine if a water was subject to their jurisdiction. This is a significant change to require a private individual to prove that the water is not under federal jurisdiction, rather than relying on the government to prove that it is regulated.
Conclusion
The 2023 WOTUS Rule represents a substantial expansion of jurisdiction over streams and wetlands. The "significant nexus" test is a consultant's dream and landowner’s nightmare – requiring consideration of multiple "functions" and "factors" with no clear guidance from the agency. The administration appears unconcerned by the pending outcome in Sackett v. EPA, No. 21–454.5, whose decision could mean that the new WOTUS Rule is short-lived. Additionally, on the day the 2023 rule was published the State of Texas and several trade groups filed a challenge U.S. District court. Unfortunately, this means more uncertainty for the present time.
Matthew T Steele, Ph.D., P.E.
CEO / Executive Director
Kansas Cattlemen's Association
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