NALC’s Rollins: WOTUS legal roller coaster may slow, but it’s not stopping

Drew Viguet, University of Arkansas System Division of Agriculture,National Agricultural Law Center

November 27, 2023

The term waters of the U.S., or WOTUS, is crucial to understanding which water bodies are protected by the Clean Water Act, but defining the term has been an ongoing challenge. That trend doesn’t look to be slowing down anytime soon, according to Brigit Rollins, staff attorney for the National Agricultural Law Center.        

The Clean Water Act was passed in 1972 with the goal of improving the country’s water quality. One of the ways the Clean Water Act works to accomplish this goal is by prohibiting the discharge of pollutants into waters of the U.S. without a permit. However, rather than including a definition of WOTUS in the Clean Water Act itself, Congress left it to the Environmental Protection Agency and the U.S. Army Corps of Engineers to define the term.
        Since the Clean Water Act was passed, there have been multiple EPA regulations and Supreme Court decisions that have attempted to create a lasting WOTUS definition.
      “It’s just kind of been a bit of a mess,” Rollins said during her NALC webinar, “What’s Up with WOTUS: Post-Sackett and Beyond,” on Nov. 15. “What we’re seeing today, what we’ve seen this year, is nothing new. This has been a challenge for some time.”
    WOTUS has been an active issue in 2023. On March 20, an updated WOTUS definition issued by EPA late last year went into effect. On May 25, the Supreme Court issued a ruling in Sackett v. EPA, a long-running case which began in 2007. The Court’s decision effectively invalidated several aspects of the previous 2023 Final Rule, narrowing the definition of WOTUS to include open, flowing bodies of water such as streams, rivers, lakes and the ocean, as well as wetlands sharing a continuous surface connection with such bodies of water. The Sackett decision also redefined the word “adjacent.” The Court found that adjacent, when used in “adjacent wetlands,” means “having a continuous surface connection.”
     Rollins said this decision had a major impact. Almost every WOTUS definition since the 1980s has included adjacent wetlands, but under previous definitions, “adjacent” has included wetlands that neighbored or bordered a recognized WOTUS. The wetland did not necessarily need to be indistinguishable from the WOTUS to fall under Clean Water Act jurisdiction. With Sackett, that changed.

Public comment issue
    It didn’t take long for EPA to update its WOTUS definition following Sackett. On Aug. 29, EPA issued its Final Conforming Rule. The rule brought EPA’s definition more in line with the ruling in Sackett.
    Rollins noted that EPA did not offer a period of time for public comment before issuing its rule.
    “Usually, when an agency issues a rule or a regulation, they are going to put forward first their proposed rule,” she said. “And that’s going to be available for public comment” during which the public can leave comments on the rule that agencies will then respond to, and potentially take into account before issuing a final rule.
    EPA said that a public comment was unnecessary, as the reasoning for issuing the final rule was to conform the 2023 rule to the decision in ­Sackett v. EPA.
    “That’s something that people are going to argue about, and certainly something that we are going to see come up in the ongoing litigation,” Rollins said.
     Rollins noted that states may have their own laws regulating water and wetlands pollution, which would not be impacted by the Sackett decision and EPA’s conforming rule. While some states may not have laws regarding wetlands or may have laws preventing them from regulating wetlands beyond the federal level, other states have wetlands permitting programs that regulate more strictly than the Clean Water Act.
    “A lot of them do regulate beyond what the Clean Water Act does because the feds set the floor, not the ceiling,” she said.
    Before the Sackett decision was issued, three lawsuits were filed by multiple states to challenge the Biden Administration’s March 2023 WOTUS rule. WOTUS is currently interpreted consistent with the pre-2015 definition of the term and with the Sackettdecision in the 27 states that are party to the lawsuits, as litigation is ongoing.
Slowing, but not stopping
While 2023 has been a big year for WOTUS news, it is not the end of the road.
    “We’re still on our WOTUS roller coaster,” Rollins said. “We’ve had our Sackett decision this year, but we still have a lot of questions, really about what WOTUS looks like following Sackett.”
    Rollins noted that depending on how things shake out with the litigation, the WOTUS definition has the potential to change again. Additionally, there are state and federal laws that regulate wetlands that will probably receive greater attention in the aftermath of Sackett.
    “I would expect things are going to slow down a little bit,” Rollins said. “But, with this litigation still ongoing, there are more changes that could be ahead.”

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