Underground Infrastructure - August 2023 - 18

INSIDEINFRASTRUCTURE
Eben M. Wyman | Wyman Associates
Latest 'WOTUS' Rule Upended
by Supreme Court
EDITOR'S NOTE
Eben M. Wyman is a veteran advocate
for key underground utility and pipeline
associations. He can be contacted at
eben@wymanassociates.net.
Looking at the increasingly high-profile issue of permit reform
needed to get important infrastructure projects off the ground,
few issues (if any) are as polarizing as the " Waters of the Unites
States " (WOTUS) rulemaking.
WOTUS is intended to define the geographic reach of federal
agencies' authority in regulating streams, wetlands and other
water bodies under the Clean Water Act (CWA). After the
Biden Administration issued the latest " final " rule on WOTUS
in January of this year, the rule was immediately challenged
in several states before being considered by the U.S. Supreme
Court. In fact, the list of opposing states grew to 28 before the
Supreme Court took action in late May.
WOTUS has served as a political lightning rod for decades,
so perhaps some history would be helpful before describing
what the high court did and the expected impacts of the recent
decision. The impact upon the underground construction industry,
particularly pipelines and cross-country fiber and electric
lines, has historically been substantial.
Regulatory history
Following the enactment of the CWA in 1972, the federal
government issued regulations in 1975 defining WOTUS
to include not only actually navigable waters, but also tributaries
of such waters, interstate waters and their tributaries,
non-navigable intrastate waters where misuse could affect
interstate commerce.
The term " wetlands " is separately defined as areas that are inundated
by surface or groundwater at a frequency and duration
sufficient to support an abundance of vegetation. Once it has
been determined that a wetland is present (due to existing soil,
18 AUGUST 2023 | UndergroundInfrastructure.com
vegetation and hydrology), the next step is to determine if it is
jurisdictional, by being " adjacent " to another regulated water.
The WOTUS Rule provides the test for adjacency, as well
as for whether a stream is connected to traditionally navigable
water. Two main federal agencies have had to develop and
issue WOTUS rules, as Democratic and Republican administrations
overturn previous versions in order to issue their own
WOTUS rule: the U.S. Army Corps of Engineers (Corps) and
the Environmental Protection Agency (EPA).
There have been numerous attempts by the Supreme Court
to address the definition of WOTUS. In 1985, the court held
that a WOTUS definition encompassing all wetlands adjacent
to other bodies of water, over which the Corps has jurisdiction,
is a permissible interpretation of the CWA.
In 2006, the United States vs. Rapanos decision changed the
game. The case surrounded development in three wetland areas
on the developer's property in order to build a shopping center.
Warnings from state environmental entities that the area was
protected wetlands under the CWA were ignored, and after
cease-and-desist orders from the Environmental Protection
Agency (EPA) were not followed, EPA filed suit.
The developer, John Rapanos, argued in District Court that
the CWA only gives the government jurisdiction to regulate
traditionally navigable waters. The government countered that
Rapanos's lands were covered by the CWA as " adjacent wetlands, "
under federal interpretation of the CWA, because sites
drained into manmade drains eventually emptied into navigable
rivers and lakes.
The District Court rejected Rapanos' argument and upheld
the Corps' regulations, including the wetlands as " waters of the
United States. " Eventually, the Sixth Circuit Court of Appeals
affirmed, holding that the wetlands to those navigable waters
qualifies them as " waters of the United States " under the CWA.
The Rapanos opinion was a split decision that left some
room for debate. The " relatively permanent " test set out by
Justice Antonin Scalia requires a permanent hydrologic connection
to traditionally navigable waters, which would exclude
channels through which water flows intermittently or ephemerally,
or channels that periodically provide drainage for rainfall.
In order for an " adjacent " wetland to be considered jurisdictional
under this test, it must have a continuous surface
connection with the navigable water, making it difficult to
determine where the " water " ends and the " wetland begins. "
Therefore, the Scalia opinion provides that only those rela
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