Guest Author
The latest chapter in the ongoing saga of defining “waters of the United States” (WOTUS) has come in a Sept. 8 rule published by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the agencies).
This most recent rule revises the definition in the agencies’ January 2023 WOTUS Rule and sets a higher standard to include adjacent wetlands under the jurisdiction of the Clean Water Act (CWA). As stakeholders have already raised questions about the rule, we anticipate there will be rule challenges.
The new rule addresses the U.S. Supreme Court’s Sackett v. EPA decision invalidating the agencies’ use of the “significant nexus” standard for determining jurisdiction over adjacent wetlands. The decision significantly reduced the number of waters that are subject to federal CWA permitting requirements. Under Sackett, the CWA extends only to adjacent wetlands that are “as a practical matter indistinguishable from waters of the United States,” meaning that for wetlands to fall under federal jurisdiction, they must have a “continuous surface connection” to relatively permanent bodies of water.
The definition of WOTUS determines federal jurisdiction for 11 different CWA programs, including dredge-and-fill into wetlands, discharge and prevention of oil pollution and reporting of hazardous substances. Although the Court’s Sackett decision did not directly address the agencies’ January 2023 WOTUS Rule, the agencies stated they were modifying the January Rule to address the Sackett opinion.
The new Rule includes four revisions to the definition of WOTUS:
Removal of the significant nexus standard from the Tributaries, Adjacent Wetlands and Additional Waters sections.
Removal of interstate wetlands from the Interstate Waters section.
Removal of intrastate wetlands and streams from the Additional Waters section.
Revised the definition of adjacent to mean having a continuous surface connection.
The remainder of the January 2023 WOTUS Rule, including the preamble and exclusions, were not changed. Of concern, the existing exclusion for ditches was not modified and therefore only excludes from jurisdiction those ditches excavated wholly in and draining only dry land that are not carrying a relatively permanent flow of water. This implies that ditches that do not meet that criteria could be considered jurisdictional under the CWA as relatively permanent waters.
In Florida, which is by any definition a “wet” state, regulation of waterways and wetlands touches a broad segment of our population and our economy. Florida governments, tribes, farmers, ranchers, developers, businesses, environmental organizations, and individual homeowners will find themselves impacted by the new definition of WOTUS and how the agencies, including the Florida Department of Environmental Protection, interpret it.
Furthermore, in Florida, drainage and irrigation ditches and canals often connect wetlands to other jurisdictional waters. Therefore, how the agencies address canals and ditches going forward will be critical for determining jurisdiction on many projects. The Rule does not directly address whether a ditch, pipe, culvert, or swale can establish a continuous surface connection that would make a wetland ‘indistinguishable’ from jurisdictional water. However, the January Rule Preamble states that a non-jurisdictional ditch, swale, pipe, or culvert could serve as the continuous surface connection between a wetland and a relatively permanent water, making the wetland jurisdictional.
Further complicating matters in Florida, the majority of WOTUS have been assumed by the State for 404 permitting. The Florida program continues to rely on Florida’s wetland rules for defining jurisdiction and uses the 2020 WOTUS Rule upon an applicant’s request for exemption or treatment under the federal standard. It is unclear when Florida will update its program to address the new WOTUS Rule, further muddying the treatment of assumed waters for us in Florida.
In a recent online seminar, the agencies stated they will identify relatively permanent waters and adjacent wetlands consistent with Sackett by using tools, resources, relevant case law and existing guidance and may address issues that arise in terms of rule implementation through approved jurisdictional determinations, CWA permits, notice and comment rule-making, and guidance. Meanwhile, legislation has been introduced in the House of Representatives that aims to redefine and broaden jurisdiction under the CWA in response to Sackett’s significant narrowing.
In the meantime, like many organizations, we have to stay tuned, hoping for further updates.
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Michelle Diffenderfer is shareholder and president of Lewis, Longman & Walker, P.A. where she assists landowners, businesses and governments with local, state and federal, environmental, natural resource and land development legal requirements. Michelle helps clients navigate these laws and regulations in the permitting of their land development and infrastructure projects. She can be reached at [email protected] or by calling (561) 640-0820.
Katherine L. Hupp is an associate at Lewis, Longman & Walker, P.A., practicing in the areas of environmental, land use and Native American Law. Before LLW, she previously served as Assistant General Counsel at the St. Johns River Water Management District where she provided legal advice regarding the interpretation and application of relevant law and policy to the District’s permitting, water supply planning and regulatory enforcement programs. She can be reached at [email protected] or by calling (561) 640-0820.
