Albert Einstein once said that the definition of insanity is doing the same thing over and over again and expecting different results. In the last eight years there have been three rewrites of the definition of the Waters of the United States (WOTUS) under the Clean Water Act (CWA) by the U.S. Environmental Protection Agency (EPA) and its co-regulator The Department of the Army who administers part of the law through the U.S. Corps of Engineer (Corps.) For some history on the subject seek out my blog post at this link ( Environmental Protection Agency Announces Clean Water Act Rule.)
The first rewrite was in 2015 and it was termed the “Clean Water Rule” but should have been titled the “Clear as Mud Rule” (see Environmental Protection Agency Announces Clean Water Act Rule .) This was replaced in 2020 by the “Navigable Water Protection Rule” which should have been titled “The Do Anything You Want Rule” (see Waters of the United States .) Now we have the new 2023 “Revised Definition of the Waters of the United States.” You could call this insanity or use my word for it – silly. The pre 1985 regulations were working just fine until in 2006 the Supreme Court – well known as an august scientific body – stepped in with a criticism of the process. Their beef was that they kept getting cases challenging the decision of the Corps on administration of the part of the law they are responsible for – the CWA 404 (d) rules regulating the disposal of materials into waters of the U.S. including wetlands.
There is a long history of disputes through the court system on application of the CWA regulations and sometimes they reach the Supreme Court. This is what happens when you have a poorly written law, however no one wants to rewrite the CWA as these days that might result in wholesale slaughter of the Act or, so I was told a few years ago by senior officials at the Department of Justice. So now we get these silly continuous rewrites of the regulations.
The 2023 rendition started out well as it purported to go back to the original 1985 regulations, but then the regulators decided wouldn’t it be just dandy if we include two different tests to determine if nearby wetlands or upstream tributaries to traditional (a)(1) WOTUS are WOTUS too.
The definition of (a)(1) waters is straight from the CWA:
Waters of the United States
(a) Waters which are:
(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) The territorial seas; or
(iii) Interstate waters, including interstate wetlands
The two tests included in the new regulations are:
- the “relatively permanent standard,” and
- the “significant nexus” standard (which has been informally used for a number of years after a 2006 Supreme Court decision in which Chief Justice Kennedy wrote that this was the test an adjoining water body should pass to be considered a WOTUS.)
The “relatively permanent standard” is a fairly understandable test whereby a wetland or upstream tributary will be considered a WOTUS if it is: “a relatively permanent, standing or continuously flowing waters connected to (a)(1) waters and waters with a continuous surface connection to relatively permanent waters.”
But what in the world is a significant nexus? The new rule defines it as tributaries or wetlands that “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.”
This means if you want to develop a property within a tributary or wetland in a wide vicinity of one of these (a)(1) waters then CWA regulators must decide if the water on your property is affecting them. If the wetlands or small steams from your property are filtrating or reducing sediment, contaminants of other sorts, or harmful biological matter from the (a)(1) waters than you’re likely not going to be able to develop there. Or say the waters on your property provide for the extant water sources of (a)(1) water that support biological resources such as fish and the chain of biological organisms they feed on then you’re not going to be able to develop there either.
Welcome to the water wars. They’ve been going on for over a hundred years in the U.S. The wars are just getting larger due to increased population growth and consequent development. The current rewrite of the definition of WOTUS will do nothing to solve the legal challenges. It throws the problem back again on the regulators to make the decision of whether a particular property is a WOTUS or not, just as it always has been.
There is already a challenge to the “significant nexus” standard as defined in the new regulation. The case of Sackett vs. the EPA was taken up by the Supreme Court in late 2022. In brief this is an old dispute dating back to 2007 where a property owner was attempting to infill a wetland for development and was stopped by the EPA for violating the CWA. That’s why I started this blog post with the definition of insanity. Depending on the Supreme Court decision, we may yet see another rewrite of the WOTUS regulations. You can probably tell by the tone of this blog post that I’m getting fed up with the whole issue but I’ll continue to update my readers on this ongoing silly saga.