Experts Weigh Effects of Sackett Case

Senate Witness Says Updated WOTUS Rule Still Gives EPA Expansive Authority

Todd Neeley
By  Todd Neeley , DTN Environmental Editor
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The U.S. Senate Committee on Environment and Public Works held a hearing this week on the effects of the Supreme Court's ruling in Sackett v. EPA. (DTN file photo)

LINCOLN, Neb. (DTN) -- An environmental attorney told a U.S. Senate committee on Wednesday that a recent change to the waters of the U.S. (WOTUS) rule to conform with the Supreme Court's ruling in Sackett v. EPA may have potentially left property owners across the country still exposed to regulation.

The Biden administration announced in September a change to the WOTUS rule that includes removing the significant-nexus standard in making Clean Water Act determinations.

Susan Parker Bodine, a partner at Earth and Water Law, told the Senate Environment and Public Works Committee the EPA left language in the updated WOTUS rule that should have landowners still concerned.

Bodine said she believes the updated rule finalized last month will face more legal challenges because it "fails to fully implement" the court's decision.

For example, EPA and the U.S. Army Corps of Engineers left "interstate waters" as an independent category of jurisdictional waters, she told the committee, "Whether or not such waters are navigable or relatively permanent and connected to an interstate navigable water."

What's more, Bodine said, the updated rule does not implement a key limitation from the Sackett opinion.

"It is difficult to understand how defining WOTUS to include interstate waters as a separate category of jurisdictional waters fits into the holding of the Sackett court that a water of the United States must be 'a relatively permanent body of water connected to traditional interstate navigable waters,'" she said.

In addition, Bodine pointed out that the EPA and Corps left untouched the expansive definitions of "tributary," "relatively permanent" and "continuous surface connection" from the preamble to the January 2023 WOTUS rule.

According to the preamble, to identify a tributary, "All EPA and the Corps need to do is to 'be able to trace evidence of a flow path downstream,'" Bodine said. "That flow path does not need be a water of the United States. It can include ephemeral flows."

Once the agencies identify a tributary, she said, they must then decide whether the tributary is "relatively permanent."

Bodine said the January 2023 preamble says this determination can be based on runoff from "a concentrated period of back-to-back precipitation events."

The agencies also can determine that a stream is "relatively permanent" based on identifying a bed and bank, she said, the same indicators used to identify wetlands.

"When you put it all together, EPA and the Corps are saying that if the upper reach of a stream is considered 'relatively permanent,' then they can regulate that upper reach as long as a flow path (even if a dry channel or subsurface flow) extends to a 'water of the United States,'" Bodine told the committee.

"It is not outside the realm of possibility that they will try to regulate the entire 'flow path,' even parts that are not 'relatively permanent.'"

Bodine said that following Sackett, it is "clear that wetlands are not an independent category" of WOTUS.

Under the January 2023 rule preamble, a wetland can be clearly distinguishable from a "water of the United States" and still be regulated.

Mazeika Patricio Sullivan, a scientist at the Baruch Institute of Coastal Ecology and Forest Science at Clemson University, told the committee the Supreme Court did not consider science in rendering a decision on Sackett v. EPA.

"The Sackett decision abandons scientific consensus at a time when protections are most needed," Sullivan said.

The U.S. has lost "vast amounts" of historic wetlands, he said.

For example, Sullivan said, about 5 million acres of wetlands existed at the time of California's statehood in 1850. Today, just 9% of these wetlands remain because of conversion to agriculture, urbanization and channelization of rivers, he said, meaning protections are needed to preserve what is left.

"Sackett is likely to cause substantial and widespread harm to the nation's waters," Sullivan said.

"In the case of Sackett, the U.S. Supreme Court declared that a wetland, to be afforded CWA protection, must have a continuous surface connection with a 'water of the United States' -- an ocean, river, stream, or lake -- such that it is difficult to determine where the water ends and the wetland begins. This ruling removes the majority of U.S. wetlands from federal protection."

Sullivan said the ruling puts about 16.3 million acres of non-floodplain wetlands outside of federal protection.

"The court bludgeons science to render an opinion that is catastrophic for water protection across the United States," he said.

"For example, the court's primary conclusion requiring a permanent hydrological surface connection demonstrates a fundamental lack of understanding of how natural waters function and connect across space and time."

Read more on DTN:

"What Does Ag Really Want in WOTUS Rule?"…

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