CBA Record November-December 2021


Woes for WOTUS: Revisiting the Definition of “Waters of the United States” By Alex Garel-Frantzen

T he scope of the federal Clean Water Act (CWA) is in flux yet again. Recently, in Pasqua Yaqui Tribe v. EPA , the U.S. District Court for the District of Arizona vacated and remanded a Trump-era regulation that defined the scope of many CWA programs, sending the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) back to the regulatory drawing board. Pasqua Yaqui Tribe concerns the mean- ing of the phrase “waters of the United States” (WOTUS). This phrase is criti- cally significant because it defines the CWA’s jurisdiction. The CWA regulates discharges of pollutants from point sources to “navigable waters.” In turn, the CWA defines “navigable waters” as “waters of the United States, including the territo- rial seas.” However, the CWA does not further define WOTUS, and many CWA programs, including the National Pollutant Discharge Elimination System, apply only to discharges into WOTUS.

For years, the EPA and the USACE issued regulations defining WOTUS to cover tributaries and impoundments of interstate waters, other waters used in or affecting interstate or foreign commerce, and wetlands adjacent to those waters (including wetlands separated by man- made barriers or dikes, beach dunes, and natural river berms). Then, in 2006, the United States Supreme Court decided Rapanos v. United States . In Rapanos , the Court considered whether wetlands connected by natural or artificial ditches to distant navigable waters were WOTUS and thus subject to regula- tion under the CWA. Two tests emerged from Rapanos : (1) the Scalia Test; and (2) the Significant Nexus Test. Scalia Test The Scalia Test, announced in Justice Scalia’s four-justice plurality opinion, provides that WOTUS “includes only those relatively permanent, standing or continuously flowing bodies of water

‘forming geographic features’ that are described in ordinary parlance as ‘streams [,] . . . oceans, rivers, [and] lakes.’” Rapanos v. United States , 547 U.S. 715, 739 (2006) (alterations in original). Additionally, “only those wetlands with a continuous surface connection to bodies that are ‘[WOTUS]’ in their own right, so that there is no clear demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the [CWA].” Significant Nexus Test On one hand, as announced in Justice Kennedy’s concurring opinion, the Sig- nificant Nexus Test provides that wetlands qualify as “navigable waters” if there is “a significant nexus between the wetlands in question” and traditionally navigable waters such that “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally navigable waters. On the other, “[w]hen . . . wetlands’

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