WOTUS clarity needed
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Efforts toward definitive rules on waters of the US, but there is still ambiguity
Alan Bailey for Petroleum News
Since the enactment of the Clean Water Act in the 1970s there has been continuing contention over the scope of federal authority to require permitting under the terms of the statute. At the core of the arguments lies a lack of clarity over the specification of the waters of the United States, or WOTUS, the waterways and water bodies that are subject to federal regulation. And the scope of WOTUS matters, given that the need for permitting under the Clean Water Act can present significant cost and delay for projects that potentially impact U.S. waters The WOTUS scope also raises issues relating to the relative extents of federal and state permitting jurisdiction.
On Nov. 20 during the Resource Development Council’s annual conference, Duncan Greene, a partner in Van Ness Feldman LLP, overviewed the latest status of efforts to clarify the scope of WOTUS.
Importance in Alaska Greene commented on the importance of the WOTUS definition in Alaska, given the state’s myriad water bodies. The state holds 40% of the freshwater and 60% of the wetlands in the United States, while also having unique features such as permafrost, Greene said.
The core basis of WOTUS is straightforward, in that it clearly includes navigable waters such as oceanic waters, rivers and lakes. But what about wetlands and ponds that may connect in some way to those navigable waters? And does, for example, an area of wetland become part of WOTUS if it links to a navigable waterway via an underground connection?
Federal permitting that relates to WOTUS under the Clean Water Act includes compliance with water quality standards; oil spill prevention planning; state and tribal water quality certifications; the discharge of pollutants; and dredge and fill permitting, Greene said.
The Rapanos case Much of the current debate over the scope of WOTUS relates back to a 2006 Supreme Court decision in what is referred to as the Rapanos case. In that case, the court issued a split decision, with the justices equally divided between two views of WOTUS, one view presented by Justice Scalia and the other by Justice Kennedy.
Scalia’s test for determining whether a water body is part of WOTUS was relatively narrow and focused on the geographic setting. According to Scalia, WOTUS includes rivers, streams and lakes that stand or flow continuously, form distinct geographic features and connect to traditional navigable waters. In addition, wetlands with a continuous surface connection to a relatively permanent waterbody should be included.
Kennedy, focusing on the effect of one water body on another, took a more expansive view of WOTUS by including any water that has a significant nexus to waters that are clearly jurisdictional. The term “significant nexus” refers to the potential for a water body to impact the chemical, physical and biological integrity of those jurisdictional waters through any form of water body connection, including through subsurface groundwater, Greene explained.
2015 and 2018 rules In 2015, under the Obama administration, the Environmental Protection Agency and the U.S. Army Corps of Engineers adopted a final rule for a WOTUS definition. That rule, while based on Kennedy’s significant nexus test, actually went beyond the scope of Kennedy’s WOTUS definition, Greene said. The 2015 rule added some categories of waters that would automatically be considered jurisdictional, regardless of whether significant nexus could be demonstrated. Also, under the terms of the rule, WOTUS would incorporate ephemeral streams that only flow during rainfall, and would include, for example, isolated wetlands and wetlands in river floodplains, Greene said.
In 2018 the Trump administration proposed a new rule redefining WOTUS. This rule, which has yet to be finalized, relies more on the Scalia test, Greene said. The rule excludes ephemeral streams and narrows jurisdiction over wetlands. There are also broader exclusions for certain types of ditch, Greene said.
There is now pending litigation over both the 2015 and 2018 rules, with consequent uncertainty over how the rule making will end. In addition, the litigation has resulted in a situation where different WOTUS standards apply in different states. In several states, including Alaska, WOTUS rules and guidance that applied before the 2015 rule was finalized still apply, Greene said. All other states, except New Mexico, are now subject to the 2015 rule, he said.
“So my guess is we probably won’t really know where all this is going to end up until the Supreme Court gets another crack at defining WOTUS,” Greene said.
Unique Alaska factors Greene also pointed out that the WOTUS specification impacts Alaska in unique ways. For example permafrost, that can have seasonal surface wetland, covers large areas of the state - sometimes, for example, a seasonal sheet water flow can establish an intermittent connection to downstream waters, he said. So, with neither of the WOTUS rules excluding permafrost areas, the state of Alaska has requested the exclusion of permafrost wetlands from WOTUS, Greene said.
“The 2018 rule would still regulate large areas of permafrost wetlands, including large portions of the North Slope.” Greene said.
Another Alaska issue relates to wetland mosaics, large areas of wetlands scattered across the landscape. The state has asked for clarification over the extent to which an agency can designate multiple wetlands within a mosaic as a single large wetland, for permitting purposes - the preamble to the 2018 rule suggests that there may be circumstances under which a large complex of wetlands may be evaluated as a single wetland, Greene said.
Forested wetlands that are typically found in southeast and coastal Alaska present another uniquely Alaska issue, Greene commented. The heavy rains typically associated with these forested areas can lead to a wetland style of vegetation and soil on hillsides or other slopes, he said. The state has commented that these areas are unlikely to be jurisdictional under the 2018 rule, because they do not typically connect with jurisdictional waters, Greene said. However, given some ambiguity in the situation, the state is seeking an explicit exclusion, he said.
So, although the WOTUS debate has intensified and moved forward in recent years, a clear definition of WOTUS remains elusive.
“We probably won’t have much clarity for a while,” Greene said. “In the meantime, with so many variables in flux, all we can really do is take an adaptive approach and stay nimble.”
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