• Mark Ryan

The WOTUS Rule Is Out

See below for the link to the rule. The package is 340 pages long. The reg text starts on page 311. It will take me awhile to read through the lengthy preamble and to carefully parse the reg text, but here are my initial take-aways.

The rule itself, like the draft, is very, very simple. The details are all in the definition section, so read carefully, especially the definitions of: adjacent wetlands, ephemeral, intermittent, lakes and ponds, snowpack, tributary and typical year.

There are lots of tweaks to the draft rule, but the only significant change I see is to the definition of adjacency. It' broader than the draft rule, but still excludes all wetlands adjacent to non-WOTUS (all ephemeral and some intermittent streams) and wetlands without a surface hydrologic connection. The draft rule was very restrictive, requiring the wetland to physically abut and have a direct surface hydro connection. The final rule allows for physical separations from the adjacent water, but still requires the surface hydro connection. Since many wetlands are connected to nearby rivers and lakes via shallow subsurface aquifers, they'll be excluded from jurisdiction. As a result, it likely still covers far fewer wetlands than the 2015 rule because of remove of the significant nexus test.

The agency removed ditches from what is WOTUS, I suspect in response to complaints from the ag community. Now, they employ a double negative to exclude certain ditches from the exclusions from WOTUS. It's confusing. See 120.2(2)(v) ("Ditches that are not paragraph (1)(i) or (ii) waters, and those portions of ditches constructed in paragraph (1)(iv) waters that do not satisfy the conditions of paragraph (3)(i)"). I think this means all ditches are out unless they are a channelled jurisdictional tributary or are flowing through a jurisdictional wetland. See my Jan. 14 blogpost on ditches now being point sources.

The definition of waste treatment exclusion tracks the prior definition from the 1980s that was suspended. What isn't clear is whether one can build a waste treatment system in a WOTUS, and thereby exclude that section of water from jurisdiction. The answer may be yes. See page 194 of the preamble. Expect lots of litigation if that happens.

The rule will go final after publication in the Federal Register. Expect lots of lawsuits challenging it. This rule is a significant retreat from federal CWA jurisdiction over the last 48 years. Because it largely ignores the science and the significant nexus test, there's a good chance it will be stayed. (Will the agency get Chevron deference if no science is involved?) If President Trump is reelected, it will likely be litigated up to SCOTUS, and there's a good chance he now has the five votes he needs to approve. If he loses, expect the next Democrat in the Whitehouse to take a voluntary remand of the rule. Then there will be more litigation over that replacement rule. There will soon be three tracks of WOTUS litigation: the 2015 rule, the repeal rule, and soon the replacement rule. The lawyers are happy. WOTUS will continue to generate endless litigation until Congress decides to fix the problem.

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