The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers plan to again redefine "waters of the United States" (WOTUS). This definition is critical. It determines the scope of federal jurisdiction under the Clean Water Act (CWA), the principal federal statute aimed at protecting the nation's waters from pollution.
This latest move follows years of fluctuating WOTUS interpretations across multiple administrations. It directly responds to the Supreme Court's pivotal 2023 decision in Sackett v. EPA, which substantially narrowed federal jurisdiction, particularly over wetlands.
Sackett'sEffect and the 2023 Conforming Rule
The Sackett ruling established a more restrictive test for CWA jurisdiction. The Supreme Court held that CWA jurisdiction extends only to wetlands that possess a "continuous surface connection" to waterbodies that are themselves WOTUS. This rejected the agencies' prior interpretations that could include wetlands separated by dry land. For other water bodies like streams and lakes, the Court limited CWA jurisdiction to those that are "relatively permanent, standing, or continuously flowing."
While the Sackett decision clarified that temporary breaks in surface connection (e.g., due to low tides or drought) do not necessarily negate jurisdiction, it also affirmed that intermittent and ephemeral streams are generally outside CWA jurisdiction. Notably, the Court did not provide a definition for "relatively permanent" waters.
Historically, the treatment of ditches under the CWA has also been a point of contention. While agencies often considered ditches jurisdictional unless specifically exempted, the Supreme Court's earlier decision in United States v. Rapanos suggested most ditches are not jurisdictional. The Court classified them as point sources rather than navigable waters, noting their typically intermittent flow. TheSackettmajority did not directly address jurisdiction over ditches, though Justice Thomas' concurrence observed that a roadside ditch in that case was not a jurisdictional tributary.
In response to Sackett, the Biden administration issued the "2023 Conforming Rule" to align the WOTUS definition with the Supreme Court's directives. However, this rule, while removing language inconsistent with Sackett, did not define "continuous surface connection" or "relatively permanent" waters. Consequently, the WOTUS definition remains a subject of debate, with critics asserting the 2023 rule lacks necessary clarity.
The New WOTUS Initiative: Seeking Clarity and Consistency
The agencies' March 24 announcement signals an intent to further refine the WOTUS definition. The EPA reasoned that the 2023 Conforming Rule may not fully align with the Sackett decision and raised questions regarding its interpretation and practical application. In the announcement, EPA Administrator Lee Zeldin stressed the importance of clear and consistent regulations for all stakeholders, including states, farmers and small businesses. He noted concerns that the previous definitions could impose undue burdens and increase business costs.
The new initiative will involve gathering public input on several key aspects of the WOTUS definition, specifically concerning:
- The geographic scope of "relatively permanent" waters
- The meaning of "continuous surface connection"
- The jurisdictional status of ditches
The agencies emphasized a commitment to practical implementation and efficient regulatory processes, aligning with goals previously stated during the Trump administration. In the interim, the agencies issued a policy memorandum regarding "abutting" wetlands. This guidance aims to help distinguish non-jurisdictional wetlands near jurisdictional waters (but separated by features like uplands, berms or dikes) from those with a continuous surface connection.
Impacts for Regulated Entities
The ongoing evolution of the WOTUS definition creates continued uncertainty for landowners, developers, agricultural producers and other regulated entities. The scope of WOTUS directly impacts permitting requirements under the CWA, particularly for dredge and fill activities (Section 404) and pollutant discharges (Section 402). A narrower definition, as suggested by Sackett and potentially further refined by this new initiative, could reduce the number of projects requiring federal permits.
However, the current lack of definitive guidance on terms like "relatively permanent" and "continuous surface connection" means that jurisdictional determinations may still be subject to interpretation and potential challenges. Businesses and individuals undertaking projects that could affect water bodies or wetlands should:
- Stay informed about the progress of this new WOTUS rulemaking initiative.
- Carefully evaluate potential CWA jurisdiction for their specific sites, considering the Sackett decision and any interim guidance from the agencies.
- Be aware that state regulations may still apply even if federal CWA jurisdiction is not asserted.
The definition of WOTUS remains a dynamic and contentious area of environmental law. Regulated entities must remain vigilant and stay on top of these developments to ensure compliance, avoid potential administrative scrutiny and navigate potential litigation.
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