A Texas district court has rejected, for the time being, the EPA’s definition of the waters of the United States (“WOTUS”). The EPA’s latest definition went into force nationally on March 20 but the announcement explicitly excluded Texas and Idaho. Idaho was omitted because the Supreme Court is considering the case of Michael and Chantelle Sackett of Idaho, whom the EPA blocked from building a house—on the grounds that wetlands on the property had to be protected.
The Supreme Court will rule on the Sacketts’ case in a few months, and the EPA’s issuance of the rule is seen as a way to get ahead of the Supreme Court. Lisa Friedman of the New York Times quoted a former EPA counsel, “By issuing a rule first. . . the government has ‘more room to interpret’ the court decision when it comes.”
According to Friedman, this new rule returns to the definition that “existed before the Obama administration made major changes in 2015, leading to nearly a decade of political and legal disputes.”
The most controversial part of the 144-page rule is over wetlands. The EPA says the rule largely goes back to the 1986 rule. So, wetlands can be treated as navigable waters if they meet the standard of a “continuous surface connection” to a navigable water. They do this by abutting a “relatively permanent” impoundment or tributary, or if they are “connected to these waters by a discrete feature like a non-jurisdictional ditch, swale, pipe or culvert.” In addition, says the EPA, “A natural berm, bank, dune, or similar natural landform between an adjacent wetland and a relatively permanent water does not sever a continuous surface connection to the extent it provides evidence of a continuous surface connection.” The tributary must “meet the EPA’s ‘relatively permanent’ standard.
Of course, terms like “continuous surface connection” and “relatively permanent” water are also defined in the lengthy discussion, as is the issue of whether the wetlands meet the “significant nexus standard,” to wit, are they “waters [that] significantly affect the chemical, physical, or biological integrity” of traditional navigable waters? There’s quite a bit to muddle over.
Image of a wetland is from Felix Mittermeier for Pixabay.