The following is a guest article by Daren Bakst.
In the coming weeks, the Environmental Protection Agency (EPA) and the US Army Corps of Engineers are expected to release a proposed rule defining what is meant by “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The proposed rule is currently at the Office of Information and Regulatory Affairs for review.
The WOTUS definition is critical because it informs what waters are regulated under the CWA. For decades, the meaning of this term has been a constant source of confusion and a prime example of agency overreach. Both the EPA and Corps have long tried to regulate almost every water imaginable, acting like local zoning boards more than federal regulators.
In 2023, the Supreme Court in Sackett v. EPA finally provided some long-needed clarity on which waters are deemed to be waters of the United States. In September, 2023, the Biden EPA and Corps published a “conforming” rule purporting to amend their January, 2023 final WOTUS rule so that it complied with Sackett. They failed in this effort.
The Trump EPA and Corps now have a chance to develop a rule that is consistent with Sackett. What would this entail? The following are some minimum requirements for making this happen:
Wetlands are not WOTUS by themselves. Wetlands are only regulated to the extent “that the wetland has a continuous surface connection with that water [of the United States], making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Wetlands are not WOTUS independent of their relationship with an actual WOTUS. As explained in Sackett, citing the plurality opinion in Rapanos v. United States (2006), “In sum, we hold that the CWA extends to only those wetlands that are ‘as a practical matter indistinguishable from waters of the United States.’“ The Court also explained regulable wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” [Emphasis added].
Regulated wetlands must have a continuous surface-water connection and no demarcation. The connection requirement between wetlands and WOTUS is critical to understanding when a wetland can be regulated. The following is what I wrote in my comment to the EPA and Corps in April, when they sought feedback on the WOTUS issue:
So when would a continuous surface connection be indistinguishable? The connection would need to be a continuous surface water connection. In the 2023 WOTUS final rule, the agencies disagreed that there needs to be this water connection. Such an interpretation makes no sense unless the agencies simply want to improperly ignore the indistinguishable requirement. If there is water and then there is land, then that is a clear demarcation. It is because of the water connection that there could be a demarcation problem.
Similarly, if there is a natural or artificial barrier between the water and the wetland, there is clear demarcation. In addition, when a water abuts a wetland, this by itself would not be enough to show adjacency. Once again, the agencies have to go back to the central reason for why adjacent wetlands are covered: the problem of distinguishing “where the ‘water’ ends and the ‘wetland’ begins.”
Relatively permanent waters, at a minimum, require the presence of water for a majority of the year, and identifying such waters should be informed by a reasonable-person standard. In Sackett, the Supreme Court clarified that for a wetland to be regulated under the CWA, it must have a continuous surface connection to, and be indistinguishable from, a WOTUS “(i.e., a relatively permanent body of water connected to traditional interstate navigable waters).” The Court further stated:
[W]e conclude that the Rapanos plurality was correct: the CWA’s use of “waters” encompasses “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’“
Here is what I wrote in my comment as to how the EPA and Corps need to interpret what is meant by relatively permanent waters:
When defining the scope of what are “relatively permanent” waters, the ordinary parlance language is critical. It provides specific examples and clarity as to the scope of what waters are regulated. It also captures the point that figuring out what waters are jurisdictional [subject to regulation] should not be difficult. Bright line rules, as this language helps to establish, are critical to making implementation of the CWA feasible for the agencies and compliance feasible for property owners.
As applied, this language should mean: would a reasonable person look at a water and call it a stream, an ocean, a river, or a lake? If not, then it should not be jurisdictional. A reasonable person-type approach is consistent with Sackett and helps to develop a workable framework for understanding what waters are covered under the CWA.
Further, a relatively permanent water must have the ordinary presence of water, as explained in Sackett and the plurality in Rapanos v. United States, which as the agencies have explained “the Sackett Court ‘conclude[d] that the Rapanos plurality was correct.’“ This does not mean the ordinary presence of water by itself makes a water jurisdictional. However, it does mean for a relatively permanent water to be jurisdictional, there must be the ordinary presence of water.
The ordinary presence of water requirement indicates that at minimum a water should contain water for a majority of the year. When combined with “relatively permanent,” “standing,” and “continuously flowing,” this language suggests something a lot more than a majority of the year.
Sackett likely requires relatively permanent waters to have continuous flow or standing water for almost all of the year. The plurality opinion in Rapanos did provide the possibility of some exclusions:
By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months—such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent.
A proposed rule should follow this approach and clarify that relatively permanent waters are not regulated except at most in these very narrow circumstances. At a minimum, it should require continuous flow or standing water for a majority of the year.
Intermittent waters are not WOTUS. The Rapanos plurality opinion, which is supported by Sackett, makes it clear that waters with ephemeral and intermittent flow are not jurisdictional:
All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. Even the least substantial of the definition’s terms, namely “streams,” connotes a continuous flow of water in a permanent channel—especially when used in company with other terms such as “rivers,” “lakes,” and “oceans.”
The plurality went on to explain:
In sum, on its only plausible interpretation, the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams[,] … oceans, rivers, [and] lakes.” See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.
Any new proposed rule should make it clear that ephemeral and intermittent waters are not WOTUS.
Ditches are not WOTUS, unless a ditch somehow meets the definition of a relatively permanent water. Ditches, along with impoundments and intrastate lakes and ponds are not WOTUS unless they can somehow meet the definition of a relatively permanent water. As explained, relatively permanent waters, among other things, need to be described in ordinary parlance as a stream, ocean, river or lake, and they must be connected to traditional navigable waters.
The Biden administration rule seeking to conform to Sackett claimed that intrastate lake and ponds could be regulated if they were connected to tributaries or traditional navigable waters. This is wrong. The connection can’t be to tributaries. This is another example of the EPA and Corps trying to regulate more waters than is authorized.
Conclusion
The Trump EPA and Corps have a chance to put an end to the constant federal overreach when it comes to WOTUS. They shouldn’t get cute, as the agencies have done in the past, and interpret both the statute and court opinions in an overbroad manner. The agencies have repeatedly been shot down by the Supreme Court for such overreach and there shouldn’t be a repeat performance.
The agencies need to define WOTUS in a manner that is clear and understandable. There are too many people who find themselves subject to the CWA’s severe penalties. As the Court explained in Sackett, “The CWA is a potent weapon. It imposes what have been described as ‘crushing’ consequences even for inadvertent violations. Property owners who negligently discharge ‘pollutants’ into covered waters may face severe criminal penalties including imprisonment.”
When there is a new WOTUS rule (a too common occurrence), the agencies frequently claim that they want to provide clarity. But if figuring out whether a water is a WOTUS requires such things as aerial photographs, sophisticated software, or hydrology experts, then the agencies won’t be providing the necessary clarity. Nor have they likely developed the reasonable bright-line rules that would be consistent with Sackett and the plurality in Rapanos.
Let’s hope the Trump EPA and Corps take advantage of this opportunity to finally develop a WOTUS rule that is workable, durable, and consistent with the rule of law. If they do, it will be a big win for Americans.
This piece originally appeared at CEI.org and has been republished here with permission.
