The old adage that you can’t please everyone definitely applies to the definition of “waters of the United States” (WOTUS).
According to the fall Unified Agenda, a new WOTUS definition was proposed to be released by the Biden administration in February 2022.
However, there is a mountain of comments to sort through, as the EPA and the Army Corps of Engineers (Corps) received more than 93,000 comments as of February 7, 2022, the cutoff date for the proposed rule. And many are calling for more time to submit additional comments.
“‘EPA is committed to listening to diverse stakeholders while working on a second rulemaking process to refine the pre-2015 definition of Waters of the United States,’ said [an Agency] spokesperson,” reports E&E News. “‘While the Fall Unified Agenda included a proposed February 2022 timeline, EPA anticipates issuing a proposed rule later this year.’”
“At issue is the Biden administration’s anticipated release of a more protective definition of WOTUS compared with the Trump-era Navigable Waters Protection Rule,” E&E News continues. “EPA in recent months has moved to formally scrap the Trump rule and has put back in place pre-2015 regulations informed by past court precedent.”
In rolling back the Trump administration decision and reverting to the definition used before the Obama administration definition, the Biden administration has made some adjustments to address some Supreme Court decisions related to WOTUS.
The proposed rule would define WOTUS as:
- Traditional navigable waters, interstate waters, and the territorial seas and their adjacent wetlands;
- Most impoundments of WOTUS;
- Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard;
- Wetlands adjacent to impoundments and tributaries that meet either the relatively permanent standard or the significant nexus standard; and
- “Other waters” that meet either the relatively permanent standard or the significant nexus standard.
“The rule defines the ‘relatively permanent standard’ as ‘waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters,’” according to a Lexology article by Thompson Hine LLP. “The ‘significant nexus standard’ is defined as ‘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, interstate waters, or the territorial seas (the foundational waters).’ The proposed rule plays a balancing act between including the coverage of the 2015 Obama-era rule, while setting aside the categorical inclusions that brought that rule to a halt via litigation. The result will likely be an uptick in agency case-by-case analyses, as the agencies seek to apply the multiple standards set forth in the new definition.”
Support for the proposed rule
A coalition of state attorneys general, including “California, New York, Connecticut, the District of Columbia, Maine, Maryland, Massachusetts, Michigan, New Mexico, North Carolina, Oregon, Vermont, Washington, and Wisconsin, as well as the California State Water Resources Control Board and the City of New York’ filed a letter in February 2022 urging the Biden Administration to repeal a Trump-era rule drastically curtailing protections under the Clean Water Act [(CWA)],” according to a WisPolitics.com press release.
“This proposed rule follows the science and the law and would help protect clean water,” says Wisconsin Attorney General Josh Kaul. “It should be finalized without delay.”
Conditional support
The Solar Energy Industries Association (SEIA) has a vested interest in the WOTUS definition because utility development for solar energy will be required to meet the goal of a decarbonized economy by 2050, states a JD Supra article by Mitchell, Williams, Selig, Gates & Woodyard, PLLC.
“EPA’s rationale and proposed text [for the proposed rule] is … generally supported [by the SEIA],” the Mitchell, Williams, Selig, Gates & Woodyard article continues. “However, SEIA argues that a final rule:
“… should not unduly burden efforts to reduce the greenhouse gas emissions that cause climate change, including construction of solar energy facilities.
“Two specific comments are offered by the organization:
- Requests that the ‘Energy Generation’ category for sector-specific section 404 permit analysis be further divided and analyzed according to project description (i.e., coal, cogen, geothermal, hydropower, natural gas, nuclear, oil, solar, and wind).
- While the ‘significant nexus’ standards for field application is supported – except that ditches that do not otherwise meet the definition of a point source should not be considered jurisdictional.”
Opposition for the proposed rule
Cattlemen disagree with certain provisions of the proposed rule. On February 7, 2022, the National Cattlemen’s Beef Association submitted a letter to EPA Administrator Michael Regan calling attention to the hardships faced by livestock producers due to “years of regulatory uncertainty related to the [WOTUS] definition.”
The proposed rule would regulate water bodies commonly found on farms and ranches.
“‘The Biden administration’s rule repeals bipartisan exclusions for agriculture that existed under both Democratic and Republican administrations,’ said NCBA Chief Environmental Counsel Scott Yager,” reports Drovers. “‘Without these critical exclusions, common features like stock ponds, agricultural ditches, and drainage systems can fall under federal jurisdiction, preventing cattle producers from actively managing their land and caring for their cattle.’”
Drovers notes that the proposed rule is much more than a simple repeal because both the Trump administration’s and the Obama administration’s WOTUS definitions maintained exclusions for stock ponds and certain types of ditches for agricultural uses.
“‘Stock ponds provide drinking water for cattle and agricultural ditches keep fields from flooding. Regulating these small features does nothing to improve water quality and makes day-to-day operations more difficult for cattle producers,’ says NCBA Treasurer Joe Guild, a Nevada rancher and member of the NCBA Environmental Working Group,” according to Drovers. “‘Cattle producers already take steps to protect water—without government intervention—because it’s the right thing to do. Furthermore, farmers and ranchers are already doing good conservation work. I encourage the Biden administration to listen to farmers and ranchers across the country, rather than issuing top-down regulations from an office in Washington DC.’
“The Biden WOTUS proposal also removes exclusions for ephemeral features, or water features that only flow during rain or after snowmelt,” Drovers continues. “This creates even more confusion for cattle producers who may find puddles and creeks on their property that qualify as a ‘WOTUS’ during a rainstorm but are normally dry land.”
Meanwhile in Florida
Although federal judges in both Arizona and New Mexico have vacated the Trump administration’s Navigable Waters Protection Rule (NWPR), stating its definition of WOTUS has “fundamental, substantive flaws,” the state of Florida continues to apply the Trump definition in wetlands and water features permitting decisions “and has said that at least one project doesn’t need a [CWA] permit to damage wetlands and surface waters as a result,” states an E&E News article.
“Last year, Florida became only the third state in history behind New Jersey and Michigan to obtain authority from EPA to oversee wetland permitting in the state,” E&E News continues. “The Army Corps of Engineers retains permitting authority in the rest of the country, and EPA reserves the power to veto those permits.
“The Florida Department of Environmental Protection [(DEP)] says it’s continuing to apply the Trump rule under the State 404 program while it reviews what it says is a ‘complex and unusual legal situation’ around the vacatur of the Trump rule.” In an e-mail, Florida environmental officials say they will continue to implement the rule while discussions continue, emphasizing that the Trump-era regulation was in effect when the EPA transferred CWA permitting authority to the state.
“In a Jan. 31 letter, EPA pushed back on DEP Deputy Secretary John Truitt’s assertion that there’s any confusion or that the Trump rule may be in play. ‘In this matter, we disagree,’ wrote Jeaneanne Gettle, director of the water division in EPA’s Southeast regional office in Atlanta. Now that two District Court judges have vacated the Trump rule, Gettle wrote, ‘the applicable standard is straightforward.’ EPA and states like Florida that have wetlands authority, she wrote, should be using Supreme Court precedent and federal regulations and guidance written prior to 2015 to determine when dredging and filling of wetlands requires a Clean Water Act permit.”
Legal proceedings
The U.S. Supreme Court (SCOTUS) agreed to hear a new WOTUS case, Sackett v. Environmental Protection Agency, on January 24, 2022. The case concerns what the proper test is “for determining whether wetlands are [WOTUS] under the [CWA],” states a BallotpediaNews article.
“The dispute that led to this case began when Chantell and Michael Sackett purchased a residential lot near a lake in Idaho and used gravel and sand to fill the lot and get it ready for home construction. The EPA ordered the Sacketts to remove the fill and return the lot to its natural state, arguing that the lot contained wetlands subject to regulation under the CWA. The Sacketts sued in 2008 and argued that the EPA lacked jurisdiction over their property. The dispute has worked its way through the federal courts for the fourteen years following that initial lawsuit,” summarizes the Ballotpedia article. “The United States Court of Appeals for the Ninth Circuit ruled in favor of the EPA in 2021, holding that the CWA covers the Sacketts’ property. The Sacketts appealed to the U.S. Supreme Court, asking for clarification about which wetlands are covered by the CWA.”
SCOTUS will hear this case in its fall 2022 term.
Background
The CWA was enacted by Congress in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The only problem was the “Nation’s waters” was not defined, and that definition has been one of the most fiercely contested and misunderstood definitions under the EPA’s jurisdiction. And, to make it even more confusing, that jurisdiction is shared with the Corps.
The Obama administration attempted to define WOTUS by expanding its definition to clarify which bodies of water are automatically covered by the CWA and which must still be dealt with on a case-by-case basis. That rule defined “automatically protected waterways” as any that have a bed, a bank, and a high-water mark, according to VOX. This included many streams that remain dry part of the year.
The Trump administration’s definition made a clear distinction between federally protected wetlands and state-protected wetlands. Its definition of WOTUS pulled “back federal oversight of at least 51 percent of wetlands and 18 percent of streams — many of which had been protected since the Reagan administration,” according to E&E News.
For many, the Obama administration’s definition was overreaching, and the Trump administration’s definition did too little. Both Obama’s and Trump’s WOTUS definitions were extremely controversial and the subject of multiple court battles.
The problem with defining WOTUS is that “[t]he transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land,” as noted in the Executive Summary of the proposed rule.
In 2020, the EPA and the Corps issued the NWPR, which “provided less protection and could have allowed far more impacts to the nation’s waters than any rule that preceded it,” the Executive Summary adds. The NWPR was vacated by a federal court decision on August 30, 2021, leaving the agencies with the pre-2015 regulations as their only available rules to enforce.
Although the agencies “are not currently implementing the NWPR, the agencies are aware that further developments in litigation over the rule could bring the rule back into effect,” states the proposed rule. “For these reasons, among others discussed more fully below, the agencies have decided that prompt replacement of the NWPR through the administrative rulemaking process is vital.”
The one constant about the WOTUS definition is that it will always be hotly contested. Whatever final rule the EPA puts forth, it is certain to upset some in industry and environmental conservationists alike and will end up as the subject of future court disputes.