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‘Relatively permanent’ could be next WOTUS battleground

The meaning of permanent waters of the United States could be a key issue in three lawsuits that were filed against EPA.

Forrest Laws

December 4, 2023

5 Min Read
Wetlands
Although the Sackett vs. EPA Supreme Court ruling made significant changes in the Waters of the U.S., the meaning of the term “relatively permanent” remains unclear. Brent Murphree

The U.S. Supreme Court made significant changes in the Waters of the U.S. rules in Sackett vs. EPA, but it left unclear the legal meaning of a term that has concerned farm organizations and their leaders for years.

“The Sackett case specifically overturned the Significant Nexus test,” said Brigit Rollins, a staff attorney with the National Agricultural Law Center. (Significant Nexus is a term that applied to the connection between wetlands and lakes, rivers and streams.)

“But we still don’t have a really great idea of what it means for a water to be relatively permanent, as in waters of the United States,” she said, speaking during the third of a series of webinars on Sackett vs. EPA conducted by the NALC following the Supreme Court ruling in the case last spring.

The meaning of permanent waters of the United States could be a key issue in three lawsuits that were filed against EPA prior to the Sackett ruling but are continuing to play out in the federal court system.

Two lawsuits

Two of the lawsuits – the State of Texas vs. EPA and the State of West Virginia vs. EPA – “have pivoted to challenging the conforming rule issued by EPA following the Sackett decision,” she said. “The Commonwealth of Kentucky vs. EPA case is involved in some procedural issues, but once those are sorted out, I expect they will also be challenging the conforming rule.”

Related:EPA publishes updated Waters of the United States rule

The “permanent waters” term has been a flashpoint in the debate over the 1972 Clean Water Act, which prohibits discharges of pollutants from discernible, concrete sources into navigable waters. The CWA defines navigable waters as Waters of the U.S., but Congress left the definition of WOTUS up to the Environmental Protection Agency and the U.S. Army Corps of Engineers, the two agencies responsible for administering the act.

In the Rapanos vs. U.S. decision in 2006, a plurality of four Supreme Court Justices said the Waters of the U.S. could include non-navigable waters only if they are “relatively permanent, standing or continuously flowing bodies of water” and wetlands that share a “continuous surface connection with such water.”

Since 2006, EPA has been trying to expand the “relatively permanent” standard to protect more watershed and wetland areas from pollutants, while farm organizations have contended EPA was trying to regulate and ditches and low-lying areas that might not contain water for much of the year.

Late in 2022, EPA published a new rule that went into effect in March of 2023. The rule included as one of the five categories of WOTUS “Tributaries of traditional navigable waters or impoundments that are either: relatively permanent, standing or continuously flowing bodies of water; or that alone or in combination with similarly situated waters in the region significantly affect the chemical, physical or biological integrity of traditional navigable waters.”

Supreme Court decision

When the Supreme Court issued the decision in Sackett on May 25, EPA began revising the 2023 WOTUS Rule to conform to the new decision. On Aug. 29, EPA and the Army Corps of Engineers issued a final rule to amend the 2023 WOTUS rule without holding a public comment period.

In the Sackett ruling, the 6-3 majority of the justices said “waters” in Waters of the U.S. means “Only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers and lakes.” It also said the Clean Water Act only applies to wetlands that are indistinguishable from Waters of the U.S.

“One of the big changes in the conforming rule issued by EPA is a removal of all references to the significant nexus test,” she said. “And it seems that is no longer going to be a factor in interpretation of Waters of the U.S.

“But neither Rapanos nor the Sackett case have given a good definition beyond relatively permanent, standing or continuously flowing,” she said. “And we didn’t get a good answer to that in EPA’s conforming rule, either.”

Relatively permanent

The Supreme Court did say in the Rapanos decision that relatively permanent does not necessarily exclude streams, rivers or lakes that might dry up in extraordinary circumstances such as drought or have continuous flow during some months of the year but no flow during dry months.

“But there’s still a question of how many months of the year does a water have to be flowing to be considered seasonal? Additionally, there are questions about how much flow does there have to be to be considered continuously flowing? Will standing water meet that definition or not? There’s still some stuff that has not been addressed directly by the Supreme Court and doesn’t look like it’s been addressed directly by EPA either.”

Rollins said it’s important to remember the 2023 WOTUS rule has been enjoined in 27 states because of the pending cases. “What that means is that these states in red (displaying a map) are not applying WOTUS according to the conforming rule, they’re applying WOTUS according to the definitions prior to the EPA rule issued in 2015.

“So that’s that 1980s definition plus the court's decision in Rapanos. EPA has said that it will be administering WOTUS in these red states consistent with the ruling in Sackett. It’s hard to say exactly what that means since I have not seen EPA issue any specific guidance.”

Meanwhile, the Sackett and other Clean Water Act cases aren’t the only legal issues that could affect farmers, ranchers and forest landowners.

“Sackett and WOTUS only affect the Clean Water Act,” she said. “Many state and federal laws such as the Swampbuster provisions in the 1985 farm bill continue to regulate wetlands. These could become more relevant in light of the Sackett ruling.”

To watch Rollins presentation, visit https://uada.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=a90fd3ac-3f35-4172-9d74-b0bb01343d70.

About the Author(s)

Forrest Laws

Forrest Laws spent 10 years with The Memphis Press-Scimitar before joining Delta Farm Press in 1980. He has written extensively on farm production practices, crop marketing, farm legislation, environmental regulations and alternative energy. He resides in Memphis, Tenn. He served as a missile launch officer in the U.S. Air Force before resuming his career in journalism with The Press-Scimitar.

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