A common refrain in recent years has been, “the science is settled” (pick the topic). While we can say that about scientific laws, this statement, as it has been used, is clearly political, not scientific. In fact, when politics enters matters of science, it seems nothing is ever settled. Case in point: Waters of the United States or WOTUS.
The definition of WOTUS has been defined, appealed, overturned, redefined, and litigated time and time again since the 1970s. And, on December 30, 2022, as everyone was in the midst of the holidays, the Biden Administration released the new WOTUS rule.
Based on the comments on the latest “final” WOTUS rule, the science (or policy) does not appear to be settled.
WOTUS Defines Boundaries of Clean Water Act
As the regulated community is well aware, defining jurisdictional or regulated waters under the Clean Water Act (CWA) is no minor matter. This definition is central to questions regarding developing land as well as farming operations. The uncertainty that has surrounded this issue for far too long, is not good for economic activity.
Without getting too deep in the weeds of the 514-page final rule, here are some of the takeaways.
Case-by-Case Determinations
One of the main concerns is that it appears the final rule will leave many (if not most) decisions regarding regulated waters to case-by-case determinations by the regulating agency. The uncertainty in many situations does not even allow a potentially regulated person to determine whether the regulation applies to them. Accordingly, they can inadvertently think they can move ahead with their activity, only to be told later that they were in violation to do so. Additionally, asking for a determination can delay developments in some cases for years.
As you may recall, this issue of uncertainty was debated during the Supreme Court of the United States (SCOTUS) hearing on the Sackett case (a case involving WOTUS, the ruling of which will be released relatively soon) last fall. Below is an excerpt from the oral arguments that may be telling as we anticipate the ruling.
“So, if the federal government doesn’t know (what a regulated water is), how is a person subject to criminal time in federal prison supposed to know?” – Justice Gorsuch responding to the attorney for the USEPA.
Jurisdictional Waters
This much is clear (or cloudy given the wiggle words and catch-all phrases), the new rule lists the following as jurisdictional waters:
- Traditional navigable waters, territorial seas, and interstate waters;
- Impoundments created in or from a WOTUS;
- Tributaries that ultimately flow into traditional navigable waters, the territorial seas, interstate waters, or impoundments of jurisdictional waters. Tributaries are jurisdictional if they meet either the relatively permanent standard or significant nexus standard;
- Adjacent wetlands that meet either the relatively permanent standard or the significant nexus standard, or where the wetland is adjacent to a traditional navigable water, the territorial seas, or an interstate water; and
- “Additional Waters” – other lakes, ponds, streams, or wetlands that do not fit into one of the other enumerated categories are jurisdictional if they meet either the relatively permanent standard or the significant nexus standard.
(See blog by Winston Strawn)
Two Standard Test
The final rule provides for two standards to be used to determine if tributaries, adjacent wetlands, or additional waters are jurisdictional:
- The relatively permanent standard
- The significant nexus standard
For those who have been tracking this issue for the past couple of decades, you probably recognize these from the Supreme Court’s Rapanos decision from 2006.
For a waterbody to be relatively permanent (as put forth by Justice Scalia in Rapanos), it must be relatively permanent, standing, or continuously flowing waters connected to traditional navigable waters, territorial seas, or interstate waters or have a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters.
Chemical, Physical, and Biological Integrity
The significant nexus test (proposed by Justice Kennedy in Rapanos) is a waterbody subject to the Clean Water Act if such waterbody, alone or in combination with other waterbodies, significantly affects the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.
Again referring to the blog from Winston Strawn, “The new regulation…seeks to implement Justice Kennedy’s test by asserting jurisdiction over ‘Tributaries … [t]hat either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of’ traditional navigable waters. But Justice Kennedy wrote that ‘wetlands possess the requisite nexus, and thus come within the statutory phrase ‘navigable waters,’ if the wetlands, either alone or in combination with similarly situation lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters.”
The author of the blog points out that the Agencies’ new regulations arguably convert a conjunctive requirement of three elements into a disjunctive requirement for only one. This is a criticism that opponents of the 2015 Clean Water Rule previously made and that commenters raised in response to the December 2021 proposed rulemaking.
A clear definition of regulated waters has eluded regulators for a generation (Photo by Lucas van Oort on Unsplash).
WOTUS Exclusions
The new WOTUS rule keeps longstanding exclusions for prior converted cropland (converted to cropland prior to December 23, 1985) and waste treatment systems. The rule also includes other exclusions, including ditches excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water, and swales and erosional (low volume, infrequent, or short duration flow).
Other waterbodies specifically excluded in the new rule are artificially irrigated areas; certain artificial lakes or ponds; artificial reflecting or swimming pools or other small ornamental waterbodies; construction-related, water-filled depressions and excavation-related pits created or excavated in dry land until construction or excavation operations cease.
(See blog by Vison & Elkins)
Climate Change and Environmental Justice
Adding more into the complexity of the WOTUS issue is the Administration’s focus on climate and Environmental Justice.
Climate change is mentioned 21 times in the final WOTUS rule, and Environmental Justice has 24 mentions. The focus on these two issues and their overlapping into regulations has been consistent since President Biden took office.
As stated in a blog by the law firm, Bracewell, “The Administration’s focus on climate change and environmental justice is also evident in the rulemaking. The Administration sees mitigation of the effects of climate change and the protection of underserved communities as justifications for expanding the reach of the Clean Water Act through a revised definition of WOTUS.”
Regulated Community Comments
To the surprise of no one, the regulated community has provided plenty of comments on the final rule. Below are a few of these comments.
“The rule doesn’t clearly exempt isolated or ephemeral features from federal jurisdiction, but instead, subjects both those features to case-by-case determinations” – National Cattleman Beef Association Chief Counsel, Mary-Thomas Hart.
“AFBF is extremely disappointed in the EPA and Army Corps of Engineers’ new Water of the United States Rule.”
“This overreach could subject farming activity like moving dirt, plowing, or building fences to require a federal permit. This means more paperwork, more delays, and more lawyers.” – Zippy Duvall, American Farm Bureau Federation.
“The regulated community and many states have called for a rule that provides the clarity and certainty essential for predictable and efficient permitting. Unfortunately, the agencies failed to pay attention to the input they received during their public comment process, as well as their regional roundtables on the proposed rulemaking.” – Waters Advocacy Coalition.
“In a blow to housing affordability and regulatory certainty for builders and other stakeholders, today the Biden administration established final regulations that will dramatically expand the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA), even as the U.S. Supreme Court has yet to decide on the legality of key aspects of the rule.” – National Association of Home Builders
Sackett and SCOTUS
As we mentioned at the beginning of this blog, the SCOTUS heard the Sackett Case (October 3, 2022). Central to this WOTUS case was their use of Justice Scalia’s opinion for determining CWA jurisdiction (rather than Kennedy’s significant nexus test). What happens if the SCOTUS agrees with the Sackett’s and diminishes the role of significant nexus?
(See Dragun Blog: US Supreme Court Tries Again to Define Regulated Waters)
It seems a fair wager to suggest that this latest final WOTUS rule will not be the final word on this regulatory saga that has lasted more than a generation. Stay tuned.
If you have questions or need assistance with an environmental permitting issue, contact either Jeffrey Bolin, M.S. or Matthew Schroeder, M.S., P.E. You can reached them at 248-932-0228.
This blog was drafted by Alan Hahn. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
The blog was reviewed by Jeffrey Bolin, M.S. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, frequent speaker, and expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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