| By Susan Bodin
On January 18, 2023, the U.S. Environmental Protection Agency (EPA) and the Corps of Engineers published a final rule defining “Waters of the United States” (WOTUS) under the Clean Water Act, although there is a case pending on the Supreme Court docket. The January regime is the subject of many challenges and remains in place in 27 states.
On May 25, 2023, the Supreme Court in Sackett v. He addressed the scope of the Clean Water Act’s authority within the EPA. All nine justices agreed that substantial nexus is not a legal basis for establishing Clean Water Act jurisdiction. All nine justices agreed that the Sackett property in Idaho, which is separated from a large wetland by a road and separated from Priest Lake by dry land and row houses, was not covered by the Clean Water Act.
In the majority opinion, Justice Alito held that only relatively permanent waters connected to traditional navigable waters are WOTUS. The majority opinion is that wetlands are controlled only when they have continuous surface contact with a body of water that is WOTUS. Justice Thomas wrote a concurring opinion, arguing that it would limit its jurisdiction to traditional beaches. Justice Kagan wrote a similar opinion, arguing that she would extend jurisdiction to neighboring wetlands even though they have no continuing surface connection to WOTUS (holding jurisdiction over neighboring wetlands). Judge Cavanaugh wrote a similar opinion stating that WOTUS extends jurisdiction over artificial embankments or natural berms, duds, or similar wetlands.
On September 8, 2023, EPA and the Corps of Engineers issued a final rule in response to Sackett. The final rule removes all language related to beneficial linkages from the January 2023 WOTUS regulatory text. Deletes interstate wetlands from the category of interstate waters. Finally, it modifies the definition of “adjacent” to mean “we have continuous surface contact.” This law applies in 23 states and the District of Columbia without the January 2023 law. In the other 27 states, agencies will implement the pre-2015 regulatory system and Sackett’s opinion.
Much of the regulatory community’s concern arises from the interpretations found in the introduction of the January 2023 final rule and the litigation surrounding this rule. According to the January 2023 introduction, all the EPA and the corporation need to do to identify tritantari is to “be able to trace evidence of downstream pathways.”
Once the agencies identify such a flow path, they must determine whether the “tributary” is “relatively sustainable.” As stated in the January 2023 entry, a stream may be considered a “relatively permanent” “water of the United States” if there are sustained flows from large storms even if the relatively permanent portion of the flow path does not reach a navigable water. The agencies can determine whether a stream is “relatively permanent” by distinguishing bed and bank — the same test agencies have previously used to regulate ephemeral flows — or waterlogged leaves, hydraulic soils, floodplains, algae, benthic macroinvertebrates and other hydrologic conditions.
And biological indicators – the same indicators used to identify wetlands.
Many argue that the instruction to distinguish between both tributaries and “relatively permanent” waters is inconsistent with Sackett.
In January 2023, the management of wetlands is equally questionable. Following Sackett, it is clear that wetlands are not an independent category of “waters of the United States” and are regulated only when wetlands are indistinguishable from “waters of the United States” because of “continuous surface contact.” He said. The rationale used by Rapanos and adopted by Sackett to support the regulation of wetlands is that the demarcation of the boundary where water ends and land begins is not always clear.
In contrast, the January 2023 entry does not implement that line-drawing exercise. The January 2023 entry requires only a physical connection between a wetland and a “water of the United States, not a hydrologic connection. That connection must be a feature of the landscape. It doesn’t even have to be a wetland.”
As with Tristar’s guidance, the January 2023 entry on “continuing surface contact” seems questionable as to whether it is compatible with Sackett.
what about now The definition of WOTUS is still murky and litigation continues. In the meantime, don’t think you need a 402 or 404 permission anymore. Under 402, a state may have a broad definition of “state waters.” Also, even if they release it to a feature no longer called WOTUS, permission is still required as it can be a source of points.
Susan Bodine, Esq., is a partner at Earth & Water Law LLC. She has more than 35 years of public and private experience in environmental public policy issues, including water pollution control, wetlands issues, federal property management, and water resource development.