On December 30, the Environmental Protection Agency quietly announced that it had issued yet another “final” rule-making that defines “waters of the U.S.” The term has been a political football ever since the 2006 Supreme Court decision in Rapanos v. United States, which was a fractured 4-4-1 decision. The case involved a landowner who faced significant penalties for backfilling on his property. Four justices voted to affirm, four to vacate.
Justice Antonin Scalia’s plurality dissent argued that “waters of the U.S.” could be “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”
Justice Anthony Kennedy attempted to square the circle—or split the baby, as some see it—in his concurring opinion, with his “significant nexus” test for when a waterway or water feature becomes “hydrologically connected” to a regulated navigable waterway and so becomes regulated itself. But the ruling created more questions than it answered.
We know what a “navigable waterway” is: one that is navigable by either recreational or commercial craft. But what, exactly, is a “hydrological” connection that forms a “significant nexus” to a navigable waterway? What does it mean to be “adjacent” to a navigable waterway? What about wetlands next to a river or waterway? How far should the connection extend? 100 feet? Several miles? Can the connection be underground, or above ground? When does a hydrologic connection stop being “significant”? Who determines? According to whose measurements? What about transitory water features that appear and disappear with the rains?
Millions of pages of commentary and court testimony have been spent on these and related questions. A Supreme Court ruling is supposed to resolve ambiguities, not create more of them. Successive Democratic and Republican administrations have appealed to the two sides in Rapanos to craft conflicting definitions of “waters of the U.S.” in what has become regulatory “ping-pong” as one administration repeals and replaces the last one’s water rules, and vice versa, with lawsuits flying and various courts weighing in. Stakeholders have been getting whiplash from trying to follow the bouncing ball.
Farmers and landowners are afraid that the widest interpretation of the definition will result in virtual federal control of all land use. Farmers complain that exceptions in the current rule allowed for certain farming practices on a case-by-case basis will nevertheless require that every decision about land use will require ruinously expensive environmental consultants and attorneys to defend.
The agencies are, unfortunately, doing nothing to minimize these concerns. The EPA claims its new rule merely “restores” the rule that existed prior to 2015. But does it? In its comment submitted last year, the National Waterways Conference argues, “While the Rapanos decision has been the subject of extensive debate due to its 4-1-4 split, one aspect of the case is certain: it limits the agencies’ jurisdiction. Both the plurality opinion and the Kennedy concurrence agreed that the agencies had overstepped the regulatory authority available to them under the CWA. The only real question was how exactly to identify the limits of that authority. Whatever the best understanding of the Rapanos opinions may be, no reasonable interpretation of the case allows the agencies to expand their jurisdiction.”
Yet the new Biden rule does just that—expands the agencies’ jurisdictional claims, NWC claims, by ignoring qualifications in Kennedy’s opinion. “The Kennedy concurrence clearly envisioned that there are some waters with a hydrologic connection that nevertheless are not jurisdictional.” The new rule incorporates Scalia’s “relatively permanent” standard OR Kennedy’s “significant nexus” test—thus increasing the agencies’ discretion and power. It also redefines “adjacent” to mean not physically connected at all: “The rule goes on to state that ‘wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands,’” NWC said.
Clarity is certainly needed. The Supreme Court is currently in the midst of deciding a case, Sackett v. EPA, that gives it an opportunity to revisit these divisive and muddied issues and resolve them more definitively and clearly. That’s one big reason why this was an inopportune time for the EPA to charge ahead with yet another “final” redefinition that promises not to be final at all. It’s too bad that EPA ignored the many groups that urged it to wait until the court rules on Sackett to take any action.