The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have issued a final draft of a new rule attempting to bring resolution to the rough waters associated with defining the scope of the federal Clean Water Act. The Act covers all “Waters of the United States”, commonly referred to as WOTUS, so the definition of WOTUS is central to a wide range of regulatory decisions. Wetlands deemed WOTUS cannot be dredged or filled without a permit from the Corps, so the revised definition is important to farmers, developers, miners, government, and other large landowners.
The new rule comes after a decade of confusion and controversy. In 2008, the U.S. Supreme Court attempted to bring clarity to the definition of WOTUS in Rapanos v. United States, but a highly fractured opinion from the Court created only additional questions. In 2015, EPA and the Corps attempted to define WOTUS by rule, but the rule was quickly stayed through litigation. In 2019, EPA and the Corps attempted to repeal the 2015 rule, but this effort was blocked in many states. The result has been a confusing patchwork of states where the pre-2015 status quo applies, including Florida, and states where the 2015 rule applies.
EPA and the Corps released the new final draft rule on January 23, 2020, and it will become effective after publication in the Federal Register, expected soon. The effectiveness of the new rule will, of course, be subject to the litigation that is certain to follow publication.
The most significant change in the new rule is the elimination of the “significant nexus” test. Under this test, any wetland that had a “significant nexus” to a WOTUS became a WOTUS. The test has been applied by many courts across the country and was incorporated into the 2015 rule. The test was widely perceived as vague and allowing the exercise of nearly unbridled discretion by the Corps, so many will certainly support its elimination. Although significantly reducing the reach of WOTUS compared to the 2015 rule, and providing additional “bright-line” tests, the definition of “Tributaries” and the term “typical year” – important to identifying some WOTUS – may cause some confusion. The rule provides a clear and sound definition of “prior converted cropland,” important to many Florida farmers.
In Florida, the new rule is unlikely to affect the state’s water discharge permitting program even though that program relies on the Clean Water Act, because the program is based on a definition of “Waters of the State” that is broader than the proposed WOTUS definition.
The new rule’s 340-page preamble concludes by stating that existing wetland determinations will remain unchanged but that landowners can reapply to the Corps for a new determination using the new rule. It also says that EPA plans future rulemaking designed to allow states to more easily assume wetlands permitting from the Corps.
If you have any questions, please contact Greg Munson. Munson is the former General Counsel at FDEP. Since 2013, he has been a shareholder practicing environmental law and government affairs at the Gunster law firm, working in Tallahassee, Florida, where he represents industrial, mining, utility, and agricultural clients.