Biden Administration Finalizes New WOTUS Definition for the New Year

The EPA and Army Corps have finalized a revised definition of "waters of the United States," which defines the scope of federal regulatory jurisdiction under the Clean Water Act.

Today the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released their released a final rule revising the federal definition of "waters of the United States"(aka "WOTUS"), which defines the scope of federal regulation under the Clean Water Act. This rule is less expansive than the WOTUS definition promulgated by the Obama Administration, but more expansive than adopted by the Trump Administration.

The CWA prohibits the discharge of pollutants in the navigable waters of the United States. The CWA further defines "navigable waters" as "the waters of the United States." This new rule, in turn, adopts a regulatory definition of "waters of the United States."

The new rule covers all waters and wetlands with a continuous surface connections with navigable waters, as well as those waters and wetlands which, "either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity" of navigable waters. The legal question is whether this definition extends the agencies' authority beyond that which is auhtorized by the CWA, or extends beyond the scope of Congress' power under the Commerce Clause, which (combined with the Necessary and Proper Clause) allows the federal government to regulate that which "subtantially affects" interstate commerce.

The EPA and Army Corps will argue that those waters and wetlands which "significantly affect the chemical, physical, or biological integrity" have a significant affect on interstate commerce. At least as applied to some lands, I expect this assertion to be challenged in federal court. However much it make sense to the agencies to regulate all waters with a significant hydrological connection to navigable waters, the federal governent's regulatory authority is not defined in such terms.

This is the third WOTUS definition issued in the past eight years, and the third attempt to adopt a definition that is consistent with the Surpeme Court's SWANCC and Rapanos decisions, each of which concluded the two agencies had adopted unduly expansive interpretations of their own jurisdiction. The rule also purports to provide additional guidance as to the extent to which (in view of the two agencies) wetlands near or adjacent to navigable waters are subject to regulation as part of the "waters of the United States," a question currently before the Court in Sackett v. EPA.

The rule will take effect 60 days after it is published in the Federal Register.

Comments

[Frank Drackman]

Does a million peoples polluting the Rio Grande (not, not with "Grease" it's not 1959, Plastic Fast Food Containers, Beer Bottles, Syringes (with needles!), AA batteries, and Oh, that "Yellow Current"??? never mind,) count???

Frank

[Dr. Ed 2]

Do they have deep pockets?

[John F. Carr]

Does this standard really clear up the uncertainty? How do I know if the puddles on my farm in combination with each other, or in combination with a neighbor's puddles I have never seen, add up to a significant effect? Do I wait for a notice from the government which comes with a presumption of correctness?

[Archibald Tuttle]

Exactly. Using this definition, which waters are clearly not WOTUS?

[Krayt]

The purpose of the granted power in the Constitution is to keep the trade routes open.

The purpose to corruption and politicians is to get in the way, to get paid to get back out of the way. Either directly, or using the issue as a sacrificial lamb to get elected, then be corrupt in some other domain once power is achieved.

This is the exact opposite of keeping the trade routes open, but exactly, and I mean exactly, in alignment with breaking trade so the free people engaged in trade will do the needful to get the corruption off their back.

Fundamental Theorem of Government: Corruption is not an unfortunate side effect of the wielding of power. It is the purpose of the wielding of power from day 1.

[Dr. Ed 2]

“How do I know if the puddles on my farm in combination with each other, or in combination with a neighbor’s puddles I have never seen, add up to a significant effect? “

The wild card is the underground rivers, which do exist, often traveling 20-30 miles underground and terminating in a spring. One of the best known springs is Poland Spring where water (rain & snowmelt) on the White Mountains flows underground to the point where its surface level is above that of the ground and it bubbles out.

Even weirder is the fact that many (but not all) of the islands in Penobscot Bay have springs fed by these underground rivers.* Anyone who has swum extensively in a New England lake has found colder areas where an underground spring is emptying into the lake — in winter, these are the places where the ice either doesn’t form or isn’t safe to walk on (moving water doesn’t freeze well).

So unless that puddle is sealed from drainage and only evaporates, it’s getting into the water table and hence….

This is a bad law — and while we don’t want people’s drinking water contaminated, we can do better.

* All of these islands are ancient volcanoes which punched their way up through the layers of sedimentary rock -- much of New York City was built from granite quarried on these islands and then transported to NYC by ship. As I understand it, the volcanic action lifted the layers of sedimentary rock and thus the channels in it through which the underground rivers were running. There have been dye tests that demonstrating that underground water on the mainland shows up on the islands a couple weeks later.

[Purple Martin]

Same with islands in the South Puget Sound. Glacial/snow melt from Mt. Rainier feeds a string of pop-up lakes to its west, between Olympia and Tacoma on the mainland, and Anderson Island.

[Dr. Ed 2]

What really got people going was when the well water on Vinalhaven Island turned bright red — it was a “harmless” dye used to trace the underground water flow inshore and no one ever expected it to show up on the island. So they tried it again and, yep….

(Now this was done a few years back when people were a little bit saner -- my guess is that things would be different today....)

The question I have is if the islands in the South Puget Sound are also volcanic? What a lot of people don’t realize is that the same NNE/SSW lines of volcanos that formed the Green & White Mountains also extend offshore, just underwater.

[Ben_]

"How do I know if the puddles on my farm in combination with each other, or in combination with a neighbor’s puddles I have never seen, add up to a significant effect?"

It depends on your past and future politics and political donations.

[Purple Martin]

When asking such a question, it’s often worthwhile to stop and consider whether there are other people who just might might have asked it before. So, ask that question first and you might discover there’s a relevant science that’s been doing that for centuries:

hy·drol·o·gy. /hīˈdräləjē/. noun. The branch of science concerned with the properties of the earth’s water, and especially its movement in relation to land.

I know of but am not particularly knowledgeable in its specifics, but spent decades in a field presenting parallel analysis challenges (cybersecurity network vulnerability analysis, tracking data leaks).

I have no doubt there are specialists (Environmental Hydrologist?) making a good living analyzing whether the fertilizer nitrates in your farm puddles are making their way into the Chesapeake Bay, or firefighting ‘forever’ chemicals into your municiple water source, and providing expert testimony in court.

The issue we’re talking about involves whether such issues ever make it into court. The Trump adminsitration argued if you can’t put a boat in it, you can’t analyze it, and the Biden adminisytration is atttempting to return partway to the position that the EPA should at least be allowed to analyze whether water on your property might evntually end up floating a boat (or entering a city’s water source).

Answering that question seems to make sense to me.

[MatthewSlyfield]

Whether or not that makes sense to you is irrelevant to the issue of whether or not it is compatible with the clean water act text and jurisdiction based on the commerce clause.

[Purple Martin]

But that is the question you asked: “How do I know if the puddles on my farm [eventually] add up to a significant effect?.“ I said that seems a good question. I believe it deserves a rational, authoritative answer. And you think answering it makes no sense?

Your identification of next steps is, however, correct. The Trump administration’s position was that the issue is moot and no further court action is needed. The Biden administration challenged that and tried to drop back to the language that had been in place for years. SCOTUS said that is the same as publishing new rules, so go through the process and also, we probably will have issues with the content, so take heed.

Biden’s EPA modified their previous position with some compromises addressing SCOTUS’s SWANCC and Rapanos issues, and released those new rules (including WOTUS definition) today. The culmination of that process is this article’s headline.

So, now the new rules go back to an expected federal court challenge, which you succinctly summarized. Will be interesting.

[Mr. Bumble]

Meanwhile the Sacketts will probably go on to the great reward before they get to build their house.

[MatthewSlyfield]

"But that is the question you asked:".

No, I did not ask that question.

[Purple Martin]

You’re right! John F. Carr asked the sentence that starts with “How do I know if…” and ends with a question mark. Sorry. Still seems worth answering.

[Dr. Ed 2]

The problem is that "significant effect" is not defined -- nor is "de minimus."

For example, the Maine lobstermen beach their boats on occasion and scrub down the bottoms with Clorox. That, of course, kills all the worms and such living in the mud under the boat -- but it's not considered a major problem because other baby worms quickly move into the vacant landscape to replace the dead ones, and Clorox rapidly breaks down into salt water. (Sodium Chloride and water.)

This is the problem with the current law -- there is no way of knowing how much of an "effect" you have to have to be in trouble.

[Darth Buckeye]

I just want to know if that low area in my yard is in the new definition.

[Purple Martin]

Could be! Or perhaps not. But you may want to ask that of a hydrologist, versus your local member of Congress.

[ChrisC]

When terms like "Congress shall make no law..." and "navigable waterways" can be contorted by the State to mean anything, we are all screwed (or I should say, continue to be screwed).

[Intelligent Mr Toad]

I can't let this article pass without repeating the oft-repeated line:

https://www.youtube.com/watch?v=RfY0PJm8t2g&t=123s

[Stephen Lathrop]

However much it make sense to the agencies to regulate all waters with a significant hydrological connection to navigable waters, the federal governent's regulatory authority is not defined in such terms.

I thought the defined scope of the federal government's regulatory authority was the question. But there Adler is, ipse dixit, with the answer.

I am disappointed in Adler's answer because passage of the CWA was one of the first stories I focused closely on at the outset of a journalistic career. There can be no question that the view of CWA's regulatory authority at that time encompassed environmental protection issues. Judged by the subjects of related public discussions at the time, those issues provided the primary public impetus behind the law's passage. Does Adler suggest that understanding—which seems to have been accepted nearly universally for decades—has somehow changed now?

More generally, I wonder why it would be unconstitutional for the CWA to be read to encompass ecological issues better understood now than when the act was passed. Those altered understandings more often go to questions of the previously unexpected reach and influence of land use decisions than they do to any changed basis for them.

For instance, the CWA was deemed an appropriate commerce clause means to protect habitat for migratory waterfowl. Does that not apply now? Or is it somehow legitimate to assert that other ecological effects unanticipated at the time of passage, which work in an exactly analogous way, are ruled out by the commerce clause?

Can an argument succeed that because no one at the time anticipated such effects would be discovered, and potentially raise the stakes on both sides of the issue, that the scope of the law must now contract? If so, that certainly hands a big victory to the land-development side of the controversy. What legal principle dictates such an outcome?

[ragebot]

Curious on how you view the 1899 Rivers and Harbors Act which was the precursor of the CWA.

https://en.wikipedia.org/wiki/Rivers_and_Harbors_Act_of_1899

[ragebot]

Just some random thoughts.

As a life long sailor the term “navigable waterways” has a much different meaning to me than the pols who came up with this policy. One standard quotation boaters often use is 'any sailor who says they have not run aground is lying'.

Not to mention one of my favorites 'a house is just a boat so poorly built and run aground so hard it is pointless to try and refloat it'. The reason I mention this is if you put chemicals on your lawn and turn on the sprinkler those chemicals will get into the ground water. Maybe the most famous spring in the US, certainly in Florida is Wakulla Springs, located around 15 miles South of Tallahassee. Scientists have put dye in the Tallahassee City well field (in this case a well filed is land next to the sewage plant where sprinklers spray treated water onto the ground) and the dye shows up in Wakulla Springs (and several other first magnitude springs in the area.

The reality is that while the majority of standing (or at times standing) water is not a “navigable waterways” that does not mean what happens on those waters does not affect “navigable waterways”. Of course this is a case of a disconnect between science and the law (rather like the are tomatoes a fruit or vegetable).

I have little doubt that the new definition of WOTUS is more than a stretch and an objective court would throw it out. On the other hand there are laws about riparian water rights that courts seem to have taken the opposite tact on. Maybe the most famous example is how the federal courts have basically said piss on the Apalachicola River watershed and dam Lake Lanier so the libturds in Atlanta can water their golf courses and destroy the Apalachicola Bay ecology by altering the salinity there.

[Stephen Lathrop]

Ragebot, I suppose a waterway which can float a small log to a paper mill ought to be considered navigable for commerce clause purposes. That might be less depth than you need to float a canoe.

[ragebot]

Back when I was a student on a work/study program at the Florida Department of Environmental Protection I was doing some GIS work I mapped what I will term a drainage ditch that only had water after it rained and the maps were used in a permitting case to deny a permit. Not sure how it turned out on appeal but it did slow down the permitting process and created billable hours.

My bigger point is that sooner or later surface water winds up in ground water; along with any pollution it carries.

[Ben_]

No doubt this new power will mostly be used to make Americans' lives worse.

[ReaderY]

Prediction: POTUS on WOTUS hits SCOTUS. COTUS takes no action.

[Mr. Bumble]

As always a vivid imagination.