Waters of the US (WOTUS) regulation: Will latest proposal provide clarity for infrastructure?
Our colleague Larry Liebesman recently spoke to the Ecological Restoration Business Association (ERBA) about federal environmental rulemaking and how current legal uncertainties may impact federal environmental permitting of infrastructure projects. A nationally recognized environmental lawyer, Larry joined Dawson & Associates in 2015. He has more than 45 years of legal experience with environmental law including 11 years as an environmental litigator at the U.S. Justice Department.
Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA). What follows are excerpts of his remarks to the ERBA.
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When EPA and the Army Corps of Engineers issued proposed revisions to the Clean Water Act Waters of the United States Rule last November, the proposal got a lot of comments especially defining the concept of a “wet season.” This goes to how to address the Supreme Court’s Sackett decision on surface hydrologic connection. How do you define that when there is an interruption in flow? How do you address the issues of adjoining wetlands where the flow is interrupted?
The provision that was very controversial was the concept of a wet season which would define limits of jurisdiction for many parts of the country where there's a limited amount of flow because of interruptions. It's especially salient in the West, where you have large, long periods of drought and flooding.
Due to critical comments, the agencies decided to go back to the drawing board on some key definitions. They issued a supplemental notice on September 9th with new definitions to, in their view, more clearly define limits of jurisdiction in conformance with Sackett.
There are three key definitions out for public comment:
Perennial, continuous flow every day under ordinary conditions,
Continuous surface connection, and
A perennial surface water connected to a jurisdictional water so that the wetland is indistinguishable from a connected water.
Jurisdiction is not lost due to temporary cutoff or droughts or floods lasting no more than 30 continuous days. The agencies put out this 30-day limit thinking it would provide more certainty and predictability by using seasonal hydrologic data such as NOAA Flood maps.
They also came up with another concept out of the other Sackett definition, relatively permanent flow, and this sort of parallels their approach on continuous surface connection.
It's defined as a perennial water that does not lose its relatively permanent status. Again, this relatively permanent concept, is a qualitative term. CWA jurisdiction would not be lost If it dries up as a result of anomalous events, such as droughts or regularly, or dry spells that exceed 30 continuous days.
When you have non-predictable or anomalous events, that raises the question of how it is supposed to be applied on the ground. Where's the line between anomalous and non-anomalous events where data is not clear?
This ties very much into the concept of tributary jurisdiction of the landscape, where you have flow that is or may be relatively permanent, but not all the time during the year. Again, dry areas out west that regularly flood create challenges.
How do you define that limit? The proposed rule would remove most intermittent streams.
I think the bottom line clearly is intermittent flows and streams are largely out. The data I've seen so far is that an up to 80% of wetlands in the country would no longer be jurisdictional at the federal level under this WOTUS definition.
Another issue that will be hard to work through is this concept of mosaic wetlands. A lot of wetlands involve wetlands that may be separated a little bit by berms, barriers and roads but are all considered one wetland. So the question then becomes, if some wetlands within the mosaic are adjoining and are hydrologically connected, does that mean the entire wetland concept is regulated?
This could have a real impact in many areas where these mosaic wetlands exist. This includes the Everglades, and areas of the Southwest and Southeast. Under the original proposed rule, the Corps of Engineers and EPA say that only those wetlands within a mosaic that are hydrologically connected would be regulated. You can imagine the difficulty of discerning in mosaic wetlands, what are regulated and what are not.
That's going to be a real challenge for the Corps and EPA.
Another major challenge involves predicting normal and ordinary flow interruptions. There are some data sources that may help define these limits. That raises the concept of “tributary reach.”
The EPA and Corps of Engineers do not propose to drop the definition of tributary, which allows for regulation of streams that go up the landscape from traditionally navigable waters that may be interrupted provided that such tributaries have perennial or relatively permanent flow.
The comment period ended on October 7 and many comments were submitted. I think the agencies are going to move quickly to finalize the rule possibly by the end of 2026. They claim that the rule will offer predictability and clarity. Environmental groups will likely sue over the final rule claiming that the loss of federal wetlands protections undermines the goals of the CWA.
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