Your monthly support provides voters the knowledge they need to make confident decisions at the polls. Donate today.

Revised Definition of "Waters of the United States" rule (2023)

From Ballotpedia
Jump to: navigation, search
New Administrative State Banner.png
What is a significant rule?

Significant regulatory action is a term used to describe an agency rule that has had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. As part of its role in the regulatory review process, the Office of Information and Regulatory Affairs (OIRA) determines which rules meet this definition.


Administrative State
Administrative State Icon Gold.png
Five Pillars of the Administrative State
•Agency control
• Executive control
• Judicial control
•Legislative control
• Public Control
Click here for more coverage of the administrative state on Ballotpedia.
Click here to access Ballotpedia's administrative state legislation tracker.


The Revised Definition of "Waters of the United States" rule is a significant rule issued by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers effective March 20, 2023, that revised the scope of waters subject to regulation under the Clean Water Act. The rule made changes to the "Revised Definition of 'Waters of the United States'" rule issued by the Trump administration in 2020. The rule was later revised on September 8, 2023, to conform with the U.S. Supreme Court ruling in Sackett v. Environmental Protection Agency which limited the EPA’s regulatory authority over the nation’s wetlands to those with “a continuous surface connection to bodies that are ‘waters of the United States.’”[1][2][3]

HIGHLIGHTS
  • Name: Revised Definition of "Waters of the United States"
  • Code of Federal Regulations: 33 CFR 328 and 40 CFR 120
  • Agency: Environmental Protection Agency and U.S. Army Corps of Engineers
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    • September 8, 2023: The EPA and U.S. Army Corps of Engineers published a revised final rule to conform with the Sackett v. Environmental Protection Agency ruling, effective immediately.[2]
    • May 25, 2023: The U.S. Supreme Court ruled in Sackett v. Environmental Protection Agency to limit the EPA's regulatory jurisdiction to wetlands with a continuous surface connection to waters of the United States. The decision invalidated parts of the rule.[4]
    • April 18, 2023: The U.S. House of Representatives failed to override the veto of H.J. Res. 27.[5]
    • April 6, 2023: President Joe Biden (D) vetoed H.J. Res. 27, which allowed the rule to remain in effect. Click here to read more about the Congressional Review Act.[5]
    • March 29, 2023: H.J. Res. 27 passed the U.S. Senate with a vote of 53-43.[5]
    • March 20, 2023: The final rule took effect.[1]
    • March 9, 2023: H.J. Res. 27 passed the U.S. House of Representatives with a vote of 227-198.[5]
    • February 2, 2023: Senator Shelley Moore Capito (R-W. Va.) and Representative Sam Graves (R-Mo.) introduced companion Congressional Review Act (CRA) resolutions, H.J. Res. 27 and S.J. Res. 7, in Congress.[6][5]
    • January 18, 2023: EPA and the U.S. Army Corps of Engineers published the final rule.[1]
    • February 7, 2022: EPA and the U.S. Army Corps of Engineers closed the comment period.[7]
    • December 7, 2021: EPA and the U.S. Army Corps of Engineers published the proposed rule and opened the comment period.[7]

    Background

    The Clean Water Act was signed into law in 1972 as an amendment to the Federal Water Pollution Control Act in an effort to address concerns regarding water quality and the federal government's authority over the waters of the United States. The act covers what is referred to as navigable waters, which are defined in the law as "the waters of the United States, including territorial seas." The definition of waters of the United States under the Clean Water Act impacts the scope of services and programs permitted under the act.[1]

    The U.S. Army Corps of Engineers issued a revised definition of waters of the United States in 1986. The definition has been the subject of several Supreme Court cases including United States v. Riverside Bayview Homes (1985), Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001), and Rapanos v. United States (2006), which all addressed the scope of the Clean Water Act. Following the ruling in Rapanos v. United States, the EPA and the U.S. Army Corps of Engineers published three rules in the Federal Register revising the definition of waters of the United States. The agencies first revised the definition in 2015 by outlining three categories of waters, however, the rule was repealed in 2019 and the 1986 regulations were recodified. A new rule was introduced in 2020 to align the definition with Justice Antonin Scalia's opinion in Rapanos v. United States and establish four categories of waters, which was met with multiple legal challenges throughout the United States.[1]

    President Joe Biden (D) issued Executive Order 13990 on January 20, 2021, which aimed "to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals," according to the order. The executive order directed executive agencies to review and address federal actions that conflict with the order. In response to the order, the EPA and the U.S. Army Corps of Engineers reviewed the 2020 rule and announced intentions to revise the rule. The agencies issued a proposed rule on December 7, 2021, in an effort to revise the definition of waters of the United States.[1]

    Aftermath

    After the final rule was published in the Federal Register on January 18, 2023, U.S. Senator Shelley Moore Capito (R-W. Va.), joined by 48 Republican cosponsors, filed a CRA resolution on February 2, 2023, aiming to nullify the rule. The CRA passed the House on March 9, 2023, with a vote of 227-198 and passed the Senate on March 29, 2023, with a vote of 53-43. President Joe Biden (D) issued a veto on April 6, 2023, to block the CRA.[5]

    The U.S. Supreme Court on May 25, 2023, unanimously held in Sackett v. Environmental Protection Agency that the EPA’s regulatory authority over the nation’s wetlands is limited to those with “a continuous surface connection to bodies that are ‘waters of the United States.’” The decision invalidated parts of the rule which prompted the EPA and the U.S. Army Corps of Engineers to announce a plan to amend the "Revised Definition of 'Waters of the United States'" rule to align with the Supreme Court decision.[8]

    The EPA and the U.S. Army Corps of Engineers announced a final rule, effective September 8, 2023, to revise the definition of waters of the United States to conform the definition to the U.S. Supreme Court’s decision in Sackett v. EPA. The revised rule removed language regarding the significant nexus standard and amended the definition of adjacent to conform with the court's interpretation of the Clean Water Act.[2]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ The Environmental Protection Agency (EPA) and the Department of the Army ('the agencies') are finalizing a rule defining the scope of waters protected under the Clean Water Act. In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining 'waters of the United States.'

    This final rule advances the objective of the Clean Water Act and ensures critical protections for the nation's vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.[1][9]

    		”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    This rule establishes the definition of 'waters of the United States' for purposes of the Clean Water Act. For clarity, this rule is divided into three parts: jurisdictional waters, exclusions, and definitions. This section of the preamble addresses each provision of the rule and provides an explanation of the rule text, a response to significant comments, and the agencies' interpretation and implementation of the provisions of the rule.

    The 'waters of the United States' are defined in paragraph (a) of this rule: (1) traditional navigable waters, the territorial seas, and interstate waters ('paragraph (a)(1) waters'); (2) impoundments of 'waters of the United States' ('paragraph (a)(2) impoundments'); (3) tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard ('jurisdictional tributaries'); (4) wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or to jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard ('jurisdictional adjacent wetlands'); and (5) intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard ('paragraph (a)(5) waters').

    The 'relatively permanent standard' means relatively permanent, standing or continuously flowing waters connected to paragraph (a)(1) waters, and waters with a continuous surface connection to such relatively permanent waters or to paragraph (a)(1) waters. The 'significant nexus standard' means 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.

    Paragraph (b) of this rule contains the longstanding exclusions from the pre-2015 regulations, as well as additional exclusions based on well-established practice, from the definition of 'waters of the United States.' Paragraph (c) of this rule provides definitions for terms used in this rule.[9]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the rule states that OMB deemed this rule significant, but not economically significant:

    “ This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket for this action. The agencies prepared an economic analysis of the potential costs and benefits associated with this action. This analysis, the Economic Analysis for the Final 'Revised Definition of 'Waters of the United States' Rule, is available in the docket for this action.[9] ”

    Text of the rule

    The full text of the rule is available below:[1]

    Responses

    The following section provides a selection of responses to the rule issued by the EPA and the U.S. Army Corps of Engineers to revise the definition of waters subject to regulation under the Clean Water Act.

    A coalition of 24 Republican-led states on February 16, 2023, filed suit in the United States District Court for the District of North Dakota Eastern Division challenging the lawfulness of the Biden administration’s final WOTUS rule. The suit argued, among other claims, that the rule exceeds the EPA’s statutory authority under the CWA:[10]

    “ It "exce[eds] [the Agencies'] statutory jurisdiction [and] authority" under the CWA by encompassing waters with no reasonable connection to "navigable waters." See 5 U.S.C. § 706(2)(C). It is arbitrary and capricious because - among many things - it embraces vague standards with little justification and minimal consideration of costs. See 5 U.S.C. § 706(2)(A). The Agencies promulgated the Final Rule in violation of multiple procedural obligations. See 5 U.S.C. § 706(2)(D). And the Final Rule runs "contrary to constitutional right, power, privilege, or immunity," by offending the Commerce Clause, Due Process Clause, and the Tenth Amendment of the U.S. Constitution.[9] ”


    Representative Dan Meuser (R-Pa.) released a statement following the SCOTUS decision in Sackett v. Environmental Protection Agency stating that the EPA's rule exceeded the agency's authority and would place excess burdens on landowners:[11]

    “ Both the Obama and Biden Administrations sought to weaponize the Clean Water Act, particularly through their WOTUS rules, to implement burdensome regulations on landowners stretching far beyond their legal authority … In particular, the Biden Administration’s proposed WOTUS rule would lead to every ditch, stream, and puddle on farmers’ and other private citizens’ properties being regulated under the Clean Water Act, even miles away from the nearest navigable water. I continue to urge the Biden administration to withdraw their disastrous WOTUS rule, especially following the Supreme Court’s decision.[9] ”


    Jon Devine, director of federal water policy for the Natural Resources Defense Council, argued in favor of the rule and its anticipated impact on the environment, according to NBC News:[12]

    “ While the nation still has significant work to do to fully protect important waters, it’s encouraging to see the country taking a step in the right direction to protect the waters we need for everyone’s health and the environment.[9] ”


    The Association of State Drinking Water Administrators issued a statement following the publication of the rule expressing support for the revised definition and the process followed to establish the rule:[13]

    “ The two agencies developed this rule by considering the relevant provisions of the Clean Water Act (CWA), relevant Supreme Court case law, and the agencies’ experience after more than 45 years of implementation of the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.[9] ”

    Noteworthy events

    EPA revises waters of the United States definition to conform with SCOTUS ruling (2023)

    The Environmental Protection Agency (EPA) and the U.S. Department of the Army announced a final rule, effective September 8, 2023, to revise the definition of waters of the United States to conform the definition to the U.S. Supreme Court’s decision in Sackett v. EPA (2023), which invalidated part of the departments' January 2023 rule.[14]

    Senator Shelley Moore Capito (R-W. Va.) issued a statement arguing against the EPA’s revised rule and citing previous arguments that the rule demonstrated regulatory overreach. Capito stated, “Despite our warnings that the Biden WOTUS rule was clear regulatory overreach and the Supreme Court soundly rejecting its ‘waters of the United States’ definition, the administration continues to take an unserious approach to issuing a durable rule that provides stability to millions of Americans. I’m disappointed this rushed rule lacks public outreach and real transparency, results in a definition that is at odds with the law, and will likely be rejected once again in the courts.”[15]

    SCOTUS limits EPA's regulatory jurisdiction under the Clean Water Act (2023)

    The U.S. Supreme Court on May 25, 2023, unanimously held in Sackett v. Environmental Protection Agency that the EPA’s regulatory authority over the nation’s wetlands is limited to those with “a continuous surface connection to bodies that are ‘waters of the United States,’” according to Justice Samuel Alito’s majority opinion. In an opinion concurring with the judgment, Justice Elena Kagan agreed with the holding but expressed concern that the court’s reasoning "substitutes its own ideas about policymaking for Congress’s.”

    Biden vetoes CRA resolution aiming to nullify EPA rule (2023)

    President Joe Biden (D) issued a veto on April 6, 2023, to block a Congressional Review Act (CRA) resolution aiming to nullify the EPA's revised Waters of the United States rule, which largely restores the Obama-era regulatory framework under the Clean Water Act. Biden stated in his message, “The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies, and downstream communities.” As a result of the veto, the rule remained in effect as of April 2023.[16]

    CRA resolution seeks to nullify EPA rule (2023)

    U.S. Senator Shelley Moore Capito (R-W.Va.), joined by 48 Republican cosponsors, filed a CRA resolution on February 2, 2023, aiming to nullify the EPA's revised Waters of the United States rule, which largely restores the Obama-era regulatory framework under the Clean Water Act. “With its overreaching navigable waters rule, the Biden administration upended regulatory certainty and placed unnecessary burdens” on Americans, argued Capito in a statement.[17] The CRA passed the House on March 9, 2023, with a vote of 227-198 and passed the Senate on March 29, 2023, with a vote of 53-43.[5]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 1.9 Federal Register, "Revised Definition of 'Waters of the United States,'" January 18, 2023
    2. ↑ 2.0 2.1 2.2 Federal Register, "Revised Definition of 'Waters of the United States'; Conforming," September 8, 2023
    3. ↑ Supreme Court of the United States, "Sackett et ux. v. Environmental Protection Agency et al.," May 25, 2023
    4. ↑ Supreme Court of the United States, "Sackett v. Environmental Protection Agency," May 25, 2023
    5. ↑ 5.0 5.1 5.2 5.3 5.4 5.5 5.6 Congress.gov, "H.J.Res.27 - Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of the Army, Corps of Engineers, Department of Defense and the Environmental Protection Agency relating to 'Revised Definition of 'Waters of the United States," accessed September 26, 2023
    6. ↑ Congress.gov, "S.J.Res.7 - A joint resolution providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of the Army, Corps of Engineers, Department of Defense and the Environmental Protection Agency relating to 'Revised Definition of 'Waters of the United States," accessed September 26, 2023
    7. ↑ 7.0 7.1 Federal Register, "Revised Definition of 'Waters of the United States,'" December 7, 2021
    8. ↑ United States Environmental Protection Agency, "EPA and the Army Developing Rule to Amend 2023 Rule," accessed July 27, 2023
    9. ↑ 9.0 9.1 9.2 9.3 9.4 9.5 9.6 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
    10. ↑ United States District Court For The District of North Dakota Eastern Division, "State of West Virginia; State of North Dakota; State of Georgia; State of Iowa; State of Alabama; State of Alaska; State of Arkansas; State of Florida; State of Indiana; State of Kansas; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of New Hampshire; State of Ohio; State of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; Commonwewalth of Virginia; State of Wyoming; v. U.S. Environmental Protection Agency; Michael S. Regan, in his official capacity as Administrator of the U.S. Environmental Protection Agency; U.S. Army Corps of Engineers; Michael L. Connor, in his official capacity as Assistant Secretary of the Army for Civil Works; Ltg Scott A. Spellmon, in his official capacity as Chief of Engineers and Commanding General, U.S. Army Corps of Engineers," February 16, 2023
    11. ↑ Dan Meuser, "Mesuer Praises Supreme Court's WOTUS Decision," May 25, 2023
    12. ↑ NBC News, "EPA issues new rule to strengthen water protections in the U.S.," December 30, 2022
    13. ↑ Association of State Drinking Water Administrators, "EPA & Corps of Engineers Publish Final "Revised Definition of Waters of the United States' (WOTUS) Rule," December 30, 2022
    14. ↑ United States Environmental Protection Agency, "To Conform with Recent Supreme Court Decision, EPA and Army Amend 'Waters of the United States' Rule," August 29, 2023
    15. ↑ Shelley Moore Capito, "Capito Statement On Biden Admin's Revised WOTUS Rule," August 29, 2023
    16. ↑ The White House, "Message to the House of Representatives - President's Veto of H.J.Res.27," April 6, 2023
    17. ↑ Shelley Moore Capito, "Capito leads all Republican senators in formally challenging Biden WOTUS rule through Congressional Review Act," February 2, 2023
    v • e
    The Administrative State
    MainThe Administrative State Project Badge.png
    Pillars
    Reporting
    Laws
    Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act
    Cases
    Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
    Terms
    Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
    Bibliography
    Agencies
    Retrieved from "https://ballotpedia.org/wiki/index.php?title=Revised_Definition_of_%22Waters_of_the_United_States%22_rule_(2023)&oldid=10360922"