Waste facilities, and frequently landfills, must contend with federal water permits when they have the potential to impact a "water of the United States." But the definition of that term has long been in contention, and the U.S. EPA is once again taking up the process to devise a new standard.
Determining what qualifies as a water of the United States under the Clean Water Act has been the subject of multiple U.S. Supreme Court cases, most recently in 2023, and every presidential administration this century has grappled with an appropriate definition. If a project affects a body of water covered under WOTUS, it must go through a more rigorous permitting process.
The EPA has made a flurry of moves in recent weeks to potentially loosen pollution rules for owners and developers of industrial facilities, in some cases upending years of precedent. The agency’s announcement on March 12 that it would revisit WOTUS adds another layer of uncertainty to a process already splintered by legal challenges.
“More than anything, clarity and certainty would be the things I really want,” said Drew Silton, an attorney with Beveridge & Diamond. “[If] I'm trying to develop a project, I'm trying to expand a landfill, I want to know definitively which features on a parcel of land are or are not a water of the U.S.”
Currently, 24 states, plus Washington, D.C. and U.S. territories, are implementing a version of the rule released by the Biden administration in 2023. The remaining 26 states are implementing a pre-2015 version of the law while their challenge to the Biden definition continues in court.
The Biden administration’s relatively expansive definition was first announced in January 2023. But the Supreme Court’s decision in Sackett vs. Environmental Protection Agency narrowed the scope of the regulation in May 2023, determining only wetlands that are directly and continuously connected to a body of water are subject to the Clean Water Act. Later that year, the EPA updated its definition of WOTUS to comply with the case without reopening the regulation for comment.
Silton noted the actions the Trump administration is taking today mirror what the president did during his first term, when he moved to restrict a version of the definition first promulgated under President Barack Obama. But the Sackett decision gives them a clearer legal framework to build from.
"Sackett nailed down one question while changing the battlefield we're going to keep playing on," said Silton.
In a news release explaining the agency’s return to WOTUS, the EPA said it would consider a new, narrower definition to reduce “red tape” and “permitting costs”. The agency plans to schedule listening sessions to learn more about how the regulation impacts industry and slows project development.
“The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business,” EPA Administrator Lee Zeldin said in a statement. “Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback.”
The agency also indicated it would solicit input on the definitions of key terms in the regulation and the Sackett decision. EPA plans to examine what it means for a body of water to be “connected to” “relatively permanent” federal waters; what it means for a feature to have a “continuous surface connection” to federal waters; and when ditches should be considered a water of the United States, per a notice.
New language tightening the rule could impact permits landfill developers need to build new cells, said Mike McLaughlin, a senior vice president specializing in landfills at SCS Engineers. In particular, permits for dredging or filling rivers are sometimes needed but are also subject to Clean Water Act rules if they affect a water of the United States. The same is true for wetlands, which are sometimes impacted by landfill development.
It’s still unclear exactly how the WOTUS definition will change following the rulemaking process. But Silton said early indications suggest operators in compliance with the rule will still be in compliance with whatever scaled-back definition comes next.
