Post-Sackett WOTUS jurisdiction narrowed further in Louisiana wetland case

[Eric]

There was a major Clean Water Act ruling in late December that further narrowed the post-Sackett definition of "waters of the United States" (WOTUS). As I discussed in this post, the Sackett v. EPA Supreme Court decision and Biden Administration's subsequent Conforming Rule had already narrowed the federal wetland definition pretty substantially. However, in issuing a regulation interpreting Sackett, the Biden Administration attempted to define WOTUS jurisdiction as broadly as possible - or not at all in terms of "non-relatively permanent" ephemeral streams. In particular, when the Biden administration revised the definition of "adjacent wetland" in response to Sackett, the new definition stated that any wetland "with a continuous surface connection" to a relatively permanent river or stream remained regulated under the Clean Water Act. By comparison, here's how jurisdictional adjacent wetlands are defined on Page 22 of the Sackett decision:

In sum, we hold that the CWA extends to only those wetlands that are “as a practical matter indistinguishable from waters of the United States.” Rapanos, 547 U. S., at 755 (plurality opinion) (emphasis deleted). This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] . . . ‘water of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Id., at 742.

Notice how the Supreme Court decision doesn't just require that jurisdictional wetlands have a "continuous surface connection" but also requires that the boundary between jurisdictional wetlands and adjacent rivers/streams be indistinguishable ("difficult to determine where the ‘water’ ends and the ‘wetland’ begins”).

It was the Corps' somewhat broader interpretation of adjacency that the U.S. Court of Appeals for the Fifth Circuit took issue with in last month's Lewis v. United States opinion. The case involved a Louisiana landowner who had been fighting the Corps over the jurisdictional status of wetlands on his 2,000-acre property. Following Sackett, the Corps had maintained that the wetlands remained "adjacent" by virtue of miles of non-jurisdictional ditches, culverts, and non-jurisdictional tributaries that connected them to the nearest downstream jurisdictional waterbody. The Fifth Circuit disagreed with the Corps' assessment and, applying the Sackett test more fully, reasoned that the wetlands could not be jurisdictional because it wasn't at all difficult to determine where the “water” ended and any “wetlands” on the property began.

This ruling could have significant consequences for federal wetland regulation because many wetlands, like those in the Lewis case, are separated from downstream tributaries by discrete conveyances like ditches and culverts. Right now the ruling is limited to the Fifth Circuit but it's entirely possible that other judges - or the Supreme Court or next administration - could extend the interpretation to other circuits/nationwide. If Sackett is further interpreted to require that wetlands be truly "indistinguishable" from relatively permanent waters, in the strictest possible sense, then I think that will really seal Sackett's legacy in terms of dramatically rolling back federal wetland regulation.

 

[Jake]

So this means if there is water that isn't connected to any major rivers or oceans, it's not protected as a WOTUS? Or does it have to meet a certain volume to count as a WOTUS? I see it mentions that any WOTUS needs to meet up with rivers or oceans.

I know someone who created a little lake around their property, that probably wouldn't count towards being WOTUS?

 

[Eric]

So this means if there is water that isn't connected to any major rivers or oceans, it's not protected as a WOTUS? Or does it have to meet a certain volume to count as a WOTUS? I see it mentions that any WOTUS needs to meet up with rivers or oceans.

I know someone who created a little lake around their property, that probably wouldn't count towards being WOTUS?

Right, before last year's landmark Sackett decision, the EPA/Corps regulations defined wetlands as being jurisdictional (i.e., a "WOTUS") if they were "adjacent" to a "traditional navigable water" (TNW) or a "relatively permanent water" (RPW) that flows into a TNW. Interpretation of "adjacent" was flexible and could mean contiguous/abutting (sharing a boundary) or neighboring (in the vicinity of the TNW/RPW). The regulations also included something called the "significant nexus test" that could bring other waters into jurisdiction if they could be demonstrated to significantly affect the chemical, physical, or biological integrity of the downstream TNW.

This all completely changed with Sackett. Sackett basically said that the significant nexus test and "neighboring test" could no longer be used to identify jurisdictional waters/wetlands.

The pond excavated around the property you described may not have ever been regulated if the pond was "excavated wholly in uplands and draining only uplands" - there's a long-standing exclusion for these sorts of features. If the excavation involved modification of an existing jurisdictional tributary, it may be a regulated WOTUS (even post-Sackett).

 

[Jake]

Right, before last year's landmark Sackett decision, the EPA/Corps regulations defined wetlands as being jurisdictional (i.e., a "WOTUS") if they were "adjacent" to a "traditional navigable water" (TNW) or a "relatively permanent water" (RPW) that flows into a TNW. Interpretation of "adjacent" was flexible and could mean contiguous/abutting (sharing a boundary) or neighboring (in the vicinity of the TNW/RPW). The regulations also included something called the "significant nexus test" that could bring other waters into jurisdiction if they could be demonstrated to significantly affect the chemical, physical, or biological integrity of the downstream TNW.

This all completely changed with Sackett. Sackett basically said that the significant nexus test and "neighboring test" could no longer be used to identify jurisdictional waters/wetlands.

The pond excavated around the property you described may not have ever been regulated if the pond was "excavated wholly in uplands and draining only uplands" - there's a long-standing exclusion for these sorts of features. If the excavation involved modification of an existing jurisdictional tributary, it may be a regulated WOTUS (even post-Sackett).

Thanks for clearing that up. I was confused how the whole WOTUS thing worked. But now it's much more clear to me. As for the pond I mentioned, I do wonder about that. I'm sure they filed a permit and followed every rule they had to. It's still around, so I'm assuming they followed the rules.