What’s next for WOTUS following Sackett ruling?

scenic wetland

| By Susan Bodine

On Jan. 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 despite the fact that a case on that issue was pending on the Supreme Court’s docket. The January rule is the subject of numerous challenges and is stayed in 27 states.

On May 25, 2023, the Supreme Court addressed the scope of Clean Water Act jurisdiction in Sackett v. EPA. All nine justices agreed that significant nexus is not a legitimate basis for establishing Clean Water Act jurisdiction. All nine justices agreed that the Sackett’s property in Idaho, which is separated from a large wetland by a road and separated from Priest Lake by dry land and a row of houses, is not regulated by the Clean Water Act.

In the majority opinion, Justice Alito held that only relatively permanent waters that are connected to traditional navigable waters are WOTUS. The majority opinion also held that a wetland is regulated only if it has a continuous surface connection to a body of water that is a WOTUS. Justice Thomas wrote a concurring opinion to say that he would limit jurisdiction to traditional navigable waters. Justice Kagan wrote a concurring opinion to say that she would extend jurisdiction to adjacent wetlands even if they do not have a continuous surface connection to a WOTUS (embracing the concept of jurisdiction over “neighboring” wetlands). Justice Kavanaugh wrote a concurring opinion to say he would extend jurisdiction to wetlands separated from a WOTUS by a man-made barrier or a natural berm, dune, or the like.

On Sept. 8, 2023, EPA and the Corps of Engineers issued a final rule to respond to Sackett. The final rule revises the January 2023 WOTUS regulatory text to removal all language pertaining to significant nexus. It deletes interstate wetlands from the category of interstate waters. Finally, it amends the definition of “adjacent” to mean “having a continuous surface connection.” This rule is in effect in 23 states and the District of Columbia, where the January 2023 rule is not stayed. In the other 27 states, the agencies say they will implement the pre-2015 regulatory regime and the Sackett opinion.

Many concerns of the regulated community arise from interpretations found in the preamble to the January 2023 final rule and litigation over that rule is continuing. According to the January 2023 preamble, to identify a tributary all EPA and the Corps need to do is to “be able to trace evidence of a flowpath downstream.”

Once the agencies identify such a flowpath, they must then decide whether the “tributary” is “relatively permanent.” According to the January 2023 preamble, a stream can be considered a “relatively permanent” “water of the United States” if there are sustained flows from large storms even if the relatively permanent part of the flowpath does not ever reach a navigable water. The agencies also can determine that a stream is “relatively permanent” based on the identification of a bed and bank – the same test that the agencies previously used to regulate ephemeral flows – or the presence of water-stained leaves, hydric soils, floodplains, algae, benthic macroinvertebrates and other hydrologic
and biologic indicators – the same indicators used to identify wetlands.

Many will argue that the guidance on identifying both tributaries and “relatively permanent” waters is not consistent with Sackett.

The treatment of wetlands in the January 2023 preamble is similarly questionable. Following Sackett, it is clear that wetlands are not an independent category of “waters of the United States” and are regulated only when, as a result of a “continuous surface connection,” the wetlands are indistinguishable from a “water of the United States.” The rationale used in Rapanos and adopted by Sackett to support the regulation of wetlands is the recognition that the demarcation where water ends and land begins is not always clear.

In contrast, the January 2023 preamble does not implement that line-drawing exercise. The January 2023 preamble requires only a physical connection between a wetland and a “water of the United States,” not a hydrologic connection. That connection need only be a feature on the landscape. It does not even need to be wet.

As with the guidance on tributaries, it appears questionable that the January 2023 preamble language on what constitutes a “continuous surface connection” is consistent with Sackett.

What now? The definition of WOTUS remains murky and litigation will continue. In the meantime, don’t assume you no longer need a 402 or 404 permit. Under 402, a state may have a broad definition of “waters of the state.” In addition, even if you discharge into a feature that is no longer considered a WOTUS, it may be a point source so a permit would still be required.

Susan Bodine

Susan Bodine, Esq., is a partner at Earth & Water Law LLC. She has more than 35 years of public and private experience with environmental public policy issues including water pollution control, wetlands issues, federal regulation of property and water resources development.

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