EPA’s New WOTUS Definition: Ripe for Litigaiton?
Does the EPA’s revised definition of “Waters of the United States” conform with the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency?
Background Leading to EPA’s Revised Definition of Waters of the United States “WOTUS”
Prior to the May 25, 2023, Sackett decision, the 2023 WOTUS Rule was finalized by the Corps and EPA on January 18, 2023 (effective March 20, 2023), which reinstated pre-2015 WOTUS definitions and included the “significant-nexus test” in determining whether and how the WOTUS related to tributaries, streams, wetlands, and intrastate lakes and ponds. (Revised Definition of “Waters of the United States”, 88 FR 3004-01.) This test identified 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.
The Sackett decision removed the significant nexus test and established the “relatively permanent/continuous surface connection” test regarding wetlands. (Sackett v. Environmental Protection Agency (May 25, 2023) 143 S.Ct. 1322.) Under the Sackett case test, wetlands that have a continuous surface connection with “waters” of the United States—i.e., with a relatively permanent body of water connected to traditional interstate navigable waters, such as “streams, oceans, rivers, and lakes” are considered a WOTUS. (Sackett v. Environmental Protection Agency (2023) 143 S.Ct. 1322, 1336.) Thus, under Sackett, a wetland is a WOTUS if it can be determined that:
(1) An adjacent body of water is a relatively permanent body of water connected to traditional interstate navigable waters, and
(2) The wetland has a continuous surface connection with that traditional navigable water, making it difficult to distinguish where the water ends, and the wetland begins. (Id. at p. 1341.)
Notably, the Sackett decision did not address many issues related to the definition of WOTUS because the Sackett decision focused primarily on CWA jurisdiction regarding wetlands. Furthermore, the EPA’s revision fails to address continued confusion regarding the meaning of terms such as “relatively permanent.”
EPA’s Revised Definition of WOTUS
On August 29, 2023, the EPA and the Corps issued a final rule to amend the final “Revised Definition of ‘Waters of the United States,” to conform with the Sackett decision. A majority of the EPA’s revisions consist of deleting the prior language. Specifically, the revisions deleted the referencing to “including interstate wetlands” and the significant-nexus portions from Title 33 of the Code of Federal Regulations Section 328.3. Notably, the EPA changed the definition of Adjacent, which used to expand the jurisdictional reach of wetlands, to now read “Adjacent means having a continuous surface connect.” (See 33 CFR § 328.3(c)(2).) Additionally, the EPA’s revision removed the definition of significantly affect, which is in line with the removal of the significant-nexus test. Similar deletions occurred in Title 40 of the Code of Federal Regulations Section 120.2.
What Does this Mean for the Future of WOTUS?
The key changes from the EPA’s definition of WOTUS are removing the significant-nexus test and the changed definition of adjacent.
The removal of the significant-nexus test means that in order for a body of water to be considered a WOTUS, it must be relatively permanent, standing, or continuously flowing. While many bodies of water in the eastern United States will remain unaffected by this decision, more arid locations, such as most of the western United States, will be heavily impacted.
For example, let’s say you own a home near a creek that becomes completely dry two to five months out of the year. As the rule is now written, that creek would no longer be protected by federal laws such as the Clean Water Act.
Another example, and more pertinent, is wetlands. In California, Wetlands do not usually have a relatively permanent, standing, or continuous flow upon them. Instead, during heavy rainfall years, the wetlands are utilized as stormwater storage, groundwater recharge, and flood control mechanisms. Under this new rule, wetlands that are not relatively permanent will no longer receive federal protection.
One last example, though not exhaustive, is mitigation banks. A mitigation bank is a way to offset the ecological loss of a development project by compensating for the preservation and restoration of a different area. There are two types of credits that the government provides, one being upland credits and the other being aquatic credits. The new rule will heavily impact the availability of aquatic credits, especially in California, because water tends to evaporate much quicker than in the eastern United States.
Aligned with the above discussion is the EPA’s new definition of adjacent. For years, many individuals relied on adjacent being considered bordering, contiguous, or neighboring; thus, not completely continuous. However, the new rule requires that the wetland have a continuous surface connection with another body of water. As explained above, this will heavily impact locations throughout the western United States. Additionally, many standalone wetlands dry up year-round and are not continuously connected with other bodies of water.
However, there is always another side to the coin; in this case, states can define the Waters of the State, providing separate protections. For example, California defines Waters of the State as any surface or groundwater (including saline waters) within the state’s boundaries. As one can imagine, this definition is overarching, including most water in California and the ground beneath it.
Another example is those who wish to develop property once considered a WOTUS. In Sackett, a developer was prohibited from building on their property because it was considered a WOTUS. Now, those who own a property near a wetland (“Property”), where the Property would have water on it frequently, but not permanently, as was in the case of Sackett, may still develop the Property because the flow of water is not continuous. However, because of the EPA’s continued ambiguity of the “relatively permanent” definition, there is still much uncertainty regarding what happens during extreme droughts, where a usually permanent body of water dries up. Thus, the saying “that’s not all she wrote” is not always accurate because there is still more to come.