New WOTUS rule has a problem: The use of ‘wet season’

The Environmental Protection Agency (EPA) and the US Army Corps of Engineers, have proposed a new rule defining the “Waters of the United States” or WOTUS. This definition is critical because it determines which waters are regulable under the Clean Water Act (CWA).

The new rule is a step forward from past definitions, and for that, the agencies should be commended. But the rule also has a problem that could make it legally vulnerable: the agencies’ use of the so-called “wet season” to define regulable waters.

Background

For decades, the EPA and Corps have defined WOTUS to impose federal regulatory control over waters beyond the language and intent of the CWA. This includes waters that most would consider to be dry land.

From 2001 to 2023, the Supreme Court struck down the agencies’ overreach on three separate occasions. In 2023, the Supreme Court issued a decision in Sackett v. EPA that finally provided clarity as to what is meant by WOTUS. Therefore, all the agencies need to do now is to develop a rule that is consistent with what the Court stated in Sackett.

The new proposed rule is more in line with Sackett than the Biden administration’s regulatory efforts, but the application of “wet season” could threaten whether the rule survives judicial scrutiny. There are two major definitions in the proposed rule that use the concept of “wet season”: the definition of “relatively permanent” waters and the definition of “continuous surface connection.”

Sackett and relatively permanent waters

The Supreme Court has explained that waters covered under the CWA must be “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” The proposed rule tries to define what “relatively permanent” means.

On its face, “relatively permanent” suggests waters that are not permanent but are very close to it. In ordinary usage, if a project is described as “relatively easy,” the project is much closer to easy than to difficult. The same logic applies when it comes to describing permanence. The Court isn’t going to say a water must be “relatively permanent” when it means there doesn’t usually need to be the presence of water.

There is more we can go on to inform the meaning of “relatively permanent.” The Court described these waters as “relatively permanent, standing or continuously flowing bodies of water.” Elsewhere, the Court has described regulable waters as “continuously present, fixed bodies of water,” and stated there must be the “ordinary presence of water.” All this language indicates permanence.  

In the Rapanos v. United States plurality opinion, which the Sackett majority adopts, there is a footnote that provides some additional guidance on what is meant by “relatively permanent”:

By describing “waters” as “relatively permanent,” we do not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances, such as drought. We also do not necessarily exclude seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months—such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent.

The Court isn’t saying that relatively permanent waters must include waters that dry up in extraordinary circumstances or the 290-day stream. It is only saying that these waters are not necessarily excluded.

If the agencies wanted to be consistent with this footnote, they arguably could include the specific examples listed or waters that are comparable in terms of continuous flow.

Proposed rule definition

According to the rule, “relatively permanent” means “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.” [Emphasis added].

The rule never defines “wet season.” However, the agencies clarify that the length of the wet season can be as little as a handful of months like the monsoon season in the arid west (from June through September) discussed in the proposed rule.

In other words, according to the agencies, a “relatively permanent” water can lack surface water for most of the year.

This is unreasonable and inconsistent with Sackett.

The agencies point out that the Supreme Court didn’t say “permanent,” it qualified it with “relatively.” That’s true. But if the Court meant a third of the year, why would it use “relatively permanent?” The agencies are so wrapped up with “relatively” that they fail to give weight to the word it qualifies: “permanent.”

This interpretation is also inconsistent with all the other language the Court uses to discuss regulable waters such as “fixed bodies of water” and the “ordinary presence of water.” If water isn’t present for at least most of the year, it isn’t ordinarily present.

The agencies also point to the footnote referenced above, saying that the Court doesn’t expressly exclude “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” The agencies don’t cite the very next clause in the footnote: “such as the 290-day, continuously flowing stream postulated by Justice Stevens’ dissent.” This 290-day stream is a far cry from a seasonal river that has standing or continuous flow for as little as four months.

It’s worth noting that not once do the agencies reference the 290-day language anywhere in the proposed rule.

Continuous surface connection

Wetlands by themselves are not WOTUS. They are only regulable to the extent “that the wetland has a continuous surface connection with that water [of the United States], making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” [Emphasis added].

As explained in Sackett, citing the plurality opinion in Rapanos, “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.’” In addition, the Court explained regulable wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.” [Emphasis added]. If they can be distinguished, then a wetland wouldn’t be regulable.

The proposed rule defines “continuous surface connection” to mean “having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.” Once again, there is the problem of “wet season.”

If a reasonable person can tell where the water ends and the wetland begins for most of the year, this is certainly not a continuous surface connection. The Court in Sackett does provide very limited exceptions to the continuous requirement, “We also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.” Yet the agencies would unreasonably cover situations when there is no continuous surface connection for most of the year.

Further, when a wetland and water can be distinguished from each other most of the time, it is unreasonable to assert that the wetland is “indistinguishably part of a body of water that itself constitutes ‘waters’ under the CWA.”

Legally vulnerable

For years, there was confusion with the WOTUS definition in part due to confusion over what the Supreme Court deemed to be “Waters of the United States.” That excuse no longer exists. The Supreme Court has established clear lines on what are regulable waters, giving the agencies very little wiggle room. The wet season concept exceeds these lines and again expands federal jurisdiction beyond what the Supreme Court has permitted. 

It should be relatively easy (i.e., mostly easy) for the agencies to finally provide a clear and durable WOTUS definition that can survive judicial scrutiny. All they need to do is be faithful to Sackett. Unfortunately, a final rule that includes the wet season concept wouldn’t meet this basic requirement and would be legally vulnerable. Decades of litigation have surrounded the WOTUS definition and unless the wet season language is dropped, it risks many more years of litigation.

To be consistent with Sackett, relatively permanent waters should be defined as perennial waters, with narrow exceptions. These narrow exceptions would give effect to the Court’s use of “relatively,” and shouldn’t go beyond those exceptions in the Rapanos footnote discussed earlier. This includes the 290-day continuously flowing stream.

For “continuous surface connection,” the agencies should clarify that this means a permanent continuous surface connection and in effect codify the clear exception the Court made in Sackett, “We also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”

Conclusion

The agencies would be wise to mirror the Supreme Court’s language to make it difficult for a court to strike down any rule. Given how important a clear and durable rule is for property owners and the agencies themselves, committing an unforced error with “wet season” would risk losing this critical opportunity to resolve the WOTUS issue once and for all.