2022 Wetland Rule - WOTUS, POTUS and SCOTUS
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by John Brooks, Groundwater & Environmental Services, Inc.
On December 30, 2022, the Environmental Protection Agency (EPA), Department of the Army (DOA), Corps of Engineers (COE), and Department of Defense (DoD) issued a joint public notice “Final Rule: Revised Definition of Waters of the United States”. The 514-page rule includes: an executive summary, general information, background, revised definition of “waters of the United States,” and statutory and executive order reviews that course through the WOTUS definition from its time of contemplation through the new rule, which it referred to as the “revised rule.”
This is 45 years of history on the expertise of the EPA and COE to interpret SCOTUS rulings, and U.S. Court of Appeals and District Court cases that added context to what is considered “waters of the United States.” For our purposes, we will refer to the “revised rule” as the “2022 new rule”, in the context of what the new rule contemplates to be “waters of the United States”. The 514 pages make it quite clear that the 2015 rule was correct in its definition of WOTUS and followed the SCOTUS Rapanos (2006) ruling to the letter; however, this readers view is that factual discrepancies were inherent in the argument which makes up the 2022 WOTUS rule.
The document calls out the split 4-1-4 decision on Rapanos, where most recall the decision being 5-4 in favor of Rapanos, where Justice Scalia provided the plurality opinion for three other justices and himself, with Justice Kennedy providing an opposing decision but still in support of Rapanos. Chief Justice Roberts offered a consensus brief providing a basis for support for the four justices interpreting “waters of the United States” as “relatively permanent, standing or continuously flowing bodies of water” that connected to Traditional Navigable Waters as well as wetland with continuous surface connection to such water's bodies.” Even in the most conservative approach, if you interweave the Justice Scalia and Kennedy’s opinions into a final decision, where Justice Kennedy provided that “waters of the United States” included wetlands which ”possess a ’significant nexus’ to waters that are, or were, navigable in fact or that could reasonably be so made.;” the culmination would not exclude either opinion over the other, and certainly, provide an “or” situation of conditions to determine what is WOTUS.
However, the new rule does (if not in certain terms but most certainly in content) refer to the 2015 WOTUS rule and the voluminous treatise, “Connectivity of Stream and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” authored by EPA’s Office of Research and Development scientists. This is a technical support document that “provides additional scientific and technical information” on how all waters of the United States are connected by chemical, physical, and biological integrity – to include biology, hydrology, geology, chemistry, and soil science – over time and space. The document is often referred to as the “water flows downhill and is interconnected through the space of time and continuum support” document.
The new rule makes use of old arguments, some new, and a twist of words and logic to support the new and improved 2022 WOTUS rule, which was a compromise between the 2015 and 2020 NWPR (Navigable Waters Protection Rule). The 2022 WOTUS rule is nothing more than the 2015 WOTUS rule, with more supporting documentation and certainly not what SCOTUS requested in 2006, a “durable WOTUS rule.”
It appears obvious by the timing of the 2022 WOTUS rule that the EPA and COE would not wait to hear what SCOTUS rules on Sackett vs. USEPA (2022) and forged ahead with their own pre-conceived notion of what they wanted in the rule. The EPA, COE and Congress ignored SCOTUS, the highest court in the land, to forge a new definition of WOTUS that better suited the EPA and COE, ignoring the presiding 45 years of court cases and the decision rendered in Rapanos.
The National Stone, Sand & Gravel Association has joined a coalition and filed a complaint in U.S. District Court against the rule. For additional information, please see this Rock Products article.
