Underground Infrastructure - August 2023 - 20

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waters that meet either the " significant nexus " or the " relatively
permanent " standard.
Specifically, the rule defines " waters of the United States " to
include the following:
* Traditional navigable waters, the territorial seas, and
interstate waters
* Impoundments (bodies of water confined within an
enclosure) of " waters of the United States " (i.e., reservoirs)
* " Tributaries " to traditional navigable waters, the territorial
seas, interstate waters, or certain impoundments, when the
tributaries meet either the relatively permanent standard or
the significant nexus standards
* Wetlands " adjacent " to navigable waters; wetlands adjacent
to and with a continuous surface connection to relatively
permanent impoundments or jurisdictional tributaries
when they meet the relatively permanent standard
* Wetlands adjacent to certain impoundments or
jurisdictional tributaries, when the wetlands meet the
significant nexus standard, and
* Certain intrastate lakes and ponds, streams or wetlands
not identified in paragraphs that meet either the relatively
permanent standard or the significant nexus standard
Exclusions
The 2023 WOTUS Rule specifically excludes the following categories
of waters:
* Waste treatment systems
* Prior converted cropland designated by the Secretary
of Agriculture
* Ditches (including roadside ditches) excavated wholly
in and draining only dry land and that do not carry a
relatively permanent flow of water
* Artificially irrigated areas that would revert to dry land
if/when irrigation ceased
* Artificial lakes or ponds created by excavating to collect
and retain water used exclusively for activities such as stock
watering, irrigation, settling basins or rice growing
* Artificial reflecting or swimming pools or other small
ornamental bodies of water created by excavating to retain
water for primarily aesthetic reasons
* Water-filled depressions created in dry land incidental
to construction activity/excavation on dry land for the
purpose of obtaining fill, sand or gravel and
* Swales and erosional features (i.e., gullies) characterized
by low volume, infrequent or short duration flow
This list of exclusions is much shorter than those included in
the Trump rule.
President Biden's WOTUS rule also included unwarranted
and harmful burdens shouldered on landowners. The rule
provides certain steps a landowner can take to determine if a
jurisdictional water is present or a permit is required. However,
the guidance mostly parrots back the definitions under the
WOTUS Rule and, unlike the previous rule, suggests that land20
AUGUST 2023 | UndergroundInfrastructure.com
owners also bear the burden to evaluate the scope of jurisdiction,
without much " guidance. "
While supporters of expanded regulation of American waters
believed the Biden WOTUS rule was a big improvement
over the Trump version, landowners facing delays, jurisdictional
issues and high costs were left without much recourse.
Importantly, the Biden administration seemed unconcerned by
a pending Supreme Court decision, Sackett vs. Environmental
Protection Agency, which many anticipated might mean that
the Biden WOTUS Rule would be short-lived.
Sackett Case a game-changer
In May, the U.S. Supreme Court overturned EPA's definition of
wetlands that fall under the agency's jurisdiction. In the Sackett
case, the high court sided with an Idaho couple who held that
they should not be required to obtain federal permits to build
on their property that lacked any navigable water. All nine justices
agreed to overturn a Circuit Court ruling that endorsed
the Biden administration's broad WOTUS definition.
Four separate opinions were published that showed a 5-4
split in how far they would allow federal jurisdiction to extend.
Conservative Justice Brett Kavanaugh and three of the court's
liberals concurred with the ruling but objected to the majority's
narrow new standard, which they said introduced more uncertainty
and would hurt water quality.
The Sackett decision provides a very clear standard that substantially
restricts the agencies' ability to regulate certain types
of wetlands and streams. Specifically, wetlands that do not have
a continuous surface connection with a navigable water are not
federally jurisdictional.
In a statement, President Joe Biden called the decision " disappointing. "
" Today's
decision upends the legal framework that has protected
America's waters for decades, " he said. " It also defies the
science that confirms the critical role of wetlands in safeguarding
our nation's streams, rivers and lakes from chemicals and
pollutants that harm the health and wellbeing of children, families
and communities. "
Justice Elena Kagan wrote a separate concurring opinion
with fellow liberal Justices Sonia Sotomayor and Ketanji Brown
Jackson that criticized the court for policymaking. The majority
in this case invented a standard that laws that impact private
property must have " exceedingly clear language, " Kagan wrote,
putting " a thumb on the scale for property owners, " and disregarding
the public interest in clean water.
Several Republicans in Congress responded to the ruling
with enthusiasm. " The Supreme Court's decision is clearly a
decisive win for America's farmers, small businesses, property
owners and those who help build our infrastructure, " U.S.
House Transportation and Infrastructure Chairman Sam
Graves of Missouri and Water Resources and Environment
Subcommittee Chairman David Rouzer of North Carolina said
in a joint statement.
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Underground Infrastructure - August 2023

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