What’s New with Wetlands?
On August 29, 2023, the federal government amended the 2023 rule defining waters of the U.S. (a.k.a., WOTUS). For this article, let’s call it the “Amended 2023 WOTUS Rule”. It amended a rule defining WOTUS issued by the Biden administration on January 18, 2023. The amendments were intended to conform to the May 25, 2023, Supreme Court decision in Sackett v. EPA. The effect of the rule change means that some waters (e.g., wetlands, ponds, and streams) will no longer need a Section 404 Clean Water Act (CWA) permit to fill once the rule is being enforced.
The changes will likely save developers time and money during development and increase property values for owners of properties with wetlands that are no longer regulated. Environmental and civil interests are concerned that these changes will negatively impact water quality, wildlife, scenic views, endangered species, and flood mitigation. These opposing interests have driven cycles of change to the rules defining WOTUS. The friction between these perspectives promises continued changes in WOTUS regulation.
What’s in the Amended 2023 WOTUS Rule?
The Amended 2023 WOTUS Rule makes two significant changes:
1. Narrows the definition of wetlands identified as waters of the U.S. by:
a. Redefining the term “adjacent” as having a “continuous surface connection.”
b. Requiring that the wetland be adjacent to waters that are “relatively permanent, standing or continuously flowing bodies of water.”
2. Narrows the definition of tributaries (streams) identified as WOTUS by defining them as relatively permanent, standing, or continuously flowing bodies of water.
These changes were accomplished by deleting references to “significant nexus” in the definition of wetlands or tributaries as waters of the U.S. The additional changes were accomplished by providing a new definition for “adjacent.”
How Will We Define a Relatively Permanent Water?
The Amended 2023 WOTUS Rule has a significant commonality to the 2020 Navigable Waters Protection Rule (NWPR) published by the Trump administration before the courts set it aside. The NWPR found jurisdiction based on the “relatively permanent water” standard which is now central to defining WOTUS. The U.S. EPA and U.S. Corps of Engineers (agencies) have not issued guidance on how to apply the Amended 2023 WOTUS Rule, but environmental consultants had about a year of experience implementing the NWPR which provided an example of how relatively permanent waters were defined absent the significant nexus test. During the NWPR period, ephemeral streams were frequently eliminated from jurisdiction, along with many wetlands situated on or near ephemeral streams.
Here is a bold prediction: intermittent streams are likely to stay under the jurisdiction of the CWA as WOTUS. Intermittent streams were generally regulated under the NWPR, at least in Texas and Louisiana. The big challenge to applying the NWPR was documenting whether a stream was ephemeral or intermittent. That endeavor is likely to be a major focus of environmental consultants tasked with identifying WOTUS on properties and project sites under the Amended 2023 WOTUS Rule.
There are tools available called Streamflow Duration Assessment Methods (SDAMs) to help classify streams as having ephemeral, intermittent, or perennial flow. There are SDAMs in use and in development that are specific to different regions of the country. Each SDAM is used to provide the data necessary for classifying the flow duration of streams for a specific region. SDAMs are likely to become an integral part of a Wetland/Waters Delineation Report and Jurisdictional Determination to help identify the location and extent of WOTUS.
What Does this Mean for States Like Texas Where the 2023 WOTUS Rule is Blocked by The Courts?
The August 2023 amendments were made to the existing January 2023 WOTUS rule. Several states, including Texas and Louisiana, had already challenged the January 2023 WOTUS rule in court. Court orders have essentially suspended the January 2023 WOTUS rule and effectively prevented use of the Amended 2023 WOTUS Rule. Until those matters are resolved, the Corps of Engineers say they will be using the “pre-2015 Regulatory Regime” in states like Texas and Louisiana to define WOTUS. The pre-2015-Regulatory Regime uses the “significant nexus” term and a definition for “adjacent” that include more wetlands as WOTUS. It is evident that the pre-2015 Regulatory Regime is in direct conflict with the Supreme Court Sackett v. EPA decision. The intent to use rules that were recently deemed unconstitutional sounds like a bad idea, but there are a few bright points for those needing decisions from the Corps of Engineers.
During the period from June through August 2023, the Corps of Engineers was unable to make decisions about WOTUS jurisdiction while they waited for direction from the federal government on how to comply with the Sackett v. EPA decision. Now that the Amended 2023 WOTUS Rule has been published, it allows the Corps of Engineers to start issuing permits and jurisdictional determinations. It appears that using the pre-2015 rules will result in some unconstitutional decisions. However, developers who need permits for their projects now have a path forward. Many WOTUS decisions could be compliant with the pre-2015 Regulatory Regime and the Amended 2023 WOTUS Rule. This decision should help those projects, but projects with ephemeral streams and wetlands that are non-contiguous face possible legal limbo.
Further Exploring the Changes to Adjacent Wetlands and Ephemeral Streams Under Amended 2023 WOTUS Rule.
When applying the Amended 2023 WOTUS Rule, adjacent wetlands must have a continuous surface connection to a relatively permanent, standing, or continuously flowing water. In the Rapanos SCOTUS decision, the plurality left room for streams that dry up seasonally to be considered relatively permanent WOTUS. Intermittent streams may still be considered WOTUS and make jurisdictional connections for wetlands as WOTUS. However, ephemeral streams are likely to be eliminated from the definition of WOTUS. Wetlands connected to larger drainage systems through an ephemeral stream also will not likely be considered WOTUS.
In the example below, the jurisdictional status of the wetland (in green) is dependent on two factors: 1) how it is connected to the stream (in blue) and 2) the hydrologic classification of that stream. This all assumes the stream is the wetland’s only connection to a downstream waterbody.
The above diagram was made using the National Wetland Inventory Map and is used here to discuss concepts in jurisdictional determination. To simplify things, on-site conditions and other important variables are not considered.
Conditions where a wetland (in green) in the above diagram is a WOTUS under the Amended 2023 WOTUS Rule:
1. The wetland (in green) has a continuous surface connection to the stream (in blue).
2. The stream (in blue) is defined as relatively permanent, standing or continuously flowing. This condition may be approximated by the stream classified as perennial or intermittent. The regulated community needs more guidance from the agencies on classifying streams as relatively permanent, standing, or continuously flowing.
3. The stream is further connected to downstream water that meets one of the following (paraphrased for simplicity, consult original for the full definition):
a. Used or susceptible for use in interstate or foreign commerce.
b. Tidal waters.
c. Territorial seas.
d. Interstate waters.
e. Impoundments of certain waters.
f. Tributaries of the waters defined above.
Conditions where the wetland (in green) in the above photograph is not a WOTUS under the Amended 2023 WOTUS Rule:
1. If there is, in fact a berm separating the wetland (in green) from the stream (in blue).
2. If the stream is ephemeral (only flowing for brief periods after rain or snowmelt).
Some common conditions are listed below for which the regulated community will need more guidance to make jurisdictional determinations about waters:
1. If the wetland depicted above was in the 10-year (yes, ten year) floodplain associated with the stream, are there any Corps of Engineers Districts that would consider the floodplain sufficient to constitute continuous surface connection and define the wetland as a WOTUS? (Author’s bet is “no”.)
2. If there was a berm separating the wetland and stream, but a culvert allows for water flow between the stream and wetland, is that a continuous surface connection? (Author’s bet is “yes” with jurisdiction still dependent on the hydrology of the stream.)
The authors have provided the above analysis of the WOTUS definition to comment on the potential impact of the Amended 2023 WOTUS Rule on jurisdictional determinations in Texas and surrounding states. Site-specific details are too important for this information to be applied without engaging a wetland professional. If you have questions about WOTUS or this article, please reach out to the authors through LinkedIn.