The much-anticipated revised definition of 'Waters of the U.S.' was proposed last week by the U.S. EPA and the Department of the Army.
The agencies believe the proposed definition is "clear, understandable, and implementable" and clarifies federal authority under the Clean Water Act.
Under the agencies?? proposal, federally regulated waters would include traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters.
Features that only contain water during or in response to rainfall; groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems would not be considered 'waters of the United States.'
The agencies plan to hold an informational webcast on January 10, and will host a listening session on the proposed rule in Kansas City, KS, on January 23.
The proposal will be available for public comment for 60 days after publication in the Federal Register.
More information, including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets, are available at epa.gov/wotus-rule.
12/14/2018
Paul in PA
I'm a little confused by this. Didn't the U.S. Supreme Court rule that wetlands were not included in the definition of the term "waters of the United States" under the Clean Water Act? Wouldn't it take an an act of Congress to change that definition? Changing the definition of the term by an agency rule or regulation does not seem to be the correct approach to overturning a SCOTUS ruling on the law.
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This is the case.?ÿ It's pretty long and I don't recall what they said specifically about wetlands.?ÿ I only recall that it significantly curtailed the extent of what the Corps could define as "Waters of the US" for jurisdictional purposes.
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This is the case.?ÿ It's pretty long and I don't recall what they said specifically about wetlands.?ÿ I only recall that it significantly curtailed the extent of what the Corps could define as "Waters of the US" for jurisdictional purposes.
The Rapanos case did not decide anything, the court split 3 ways with no majority.?ÿ The case was remanded to a lower court and Rapanos eventually agreed to a settlement that required him to pay a $1,000,000 fine.?ÿ
The EPA is proposing to adopt the Scalia decision posted above. Although the current Supreme Court may eventually choose to endorse the Scallia decision, since no court has endorsed?ÿ this interpretation of the law yet, there will be years of legal fights ahead.
It looks like 5 to 4 to me.
Scalia, Roberts, Thomas, and Alito join in the majority with Kennedy writing a separate but concurring opinion. Roberts joins in the Judgment but then includes a separate concurring opinion, only a few paragraphs.
Stevens, Souter, Ginsburg, and Breyer dissenting.
They vacated the Judgments and Remanded.
Rapanos was a wetlands case, it clarified meaning of "waters" (relatively permanent flow) with significant nexus to "the waters of the U.S." and "significant nexus" (physical connection). Wetland with those connections falls under EPA:
"Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"?"
"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."
Rapanos was a wetlands case, it clarified meaning of "waters" (relatively permanent flow) with significant nexus to "the waters of the U.S." and "significant nexus" (physical connection). Wetland with those connections falls under EPA:
"Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"?"
"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."
So 4 Justices joined in that with Kennedy writing a separate opinion (which I haven't read)...so is it still an open question?
As a practical matter a majority of the current Court would probably adopt Scalia's opinion.
With a plurality opinion other courts have to try and find a rationale that 5 would have agreed with.?ÿ Yeah, still a somewhat open question, at least for wetlands (they didn't overturn the migratory bird pond thing).?ÿ But the decision was basically that there must be some rational limit on what the COE claims is regulated, because the law has wording that builds in limits and is not worded to cover all of the "lands" of the United States.?ÿ
The dissents basically would grant unlimited power to COE to regulate all "lands" under the act as they have been doing; and it is that which the plurality decision controls and is no longer an open question.
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Rapanos was a wetlands case, it clarified meaning of "waters" (relatively permanent flow) with significant nexus to "the waters of the U.S." and "significant nexus" (physical connection). Wetland with those connections falls under EPA:
"Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"?"
"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."
So 4 Justices joined in that with Kennedy writing a separate opinion (which I haven't read)...so is it still an open question?
As a practical matter a majority of the current Court would probably adopt Scalia's opinion.
Yes it still is an open question. The 5 only agreed to remand, there were only 4 who agreed to the Scalia definition. If the Scalia definition had the force of law there would have been no basis for the million dollar fine.
You are right, the court will probably eventually decide to adopt a similar definition, but until they do, the EPA can still enforce the broader definition, and if they choose not to, that decision is still susceptible to adverse rulings in lower courts.?ÿ
Rapanos was a wetlands case, it clarified meaning of "waters" (relatively permanent flow) with significant nexus to "the waters of the U.S." and "significant nexus" (physical connection). Wetland with those connections falls under EPA:
"Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"?"
"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."
So 4 Justices joined in that with Kennedy writing a separate opinion (which I haven't read)...so is it still an open question?
As a practical matter a majority of the current Court would probably adopt Scalia's opinion.
Yes it still is an open question. The 5 only agreed to remand, there were only 4 who agreed to the Scalia definition. If the Scalia definition had the force of law there would have been no basis for the million dollar fine.
You are right, the court will probably eventually decide to adopt a similar definition, but until they do, the EPA can still enforce the broader definition, and if they choose not to, that decision is still susceptible to adverse rulings in lower courts.?ÿ
No it is not an open question.?ÿ There are limits on EPA jurisdiction because of this case. It is important precedence, even if only a plurality decision.?ÿ But yeah, the court wants congressional action to define regulatory wetlands of EPA in a reasonable manner. Can't comment on the fine; that case has not been linked in this thread, and I'm not familiar with it.
Rapanos was a wetlands case, it clarified meaning of "waters" (relatively permanent flow) with significant nexus to "the waters of the U.S." and "significant nexus" (physical connection). Wetland with those connections falls under EPA:
"Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States. What other nexus could conceivably cause them to be "waters of the United States"?"
"Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or drains near each wetland are "waters" in the ordinary sense of containing a relatively permanent flow; and (if they are) whether the wetlands in question are "adjacent" to these "waters" in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed in Riverside Bayview."
So 4 Justices joined in that with Kennedy writing a separate opinion (which I haven't read)...so is it still an open question?
As a practical matter a majority of the current Court would probably adopt Scalia's opinion.
Yes it still is an open question. The 5 only agreed to remand, there were only 4 who agreed to the Scalia definition. If the Scalia definition had the force of law there would have been no basis for the million dollar fine.
You are right, the court will probably eventually decide to adopt a similar definition, but until they do, the EPA can still enforce the broader definition, and if they choose not to, that decision is still susceptible to adverse rulings in lower courts.?ÿ
No it is not an open question.?ÿ There are limits on EPA jurisdiction because of this case. It is important precedence, even if only a plurality decision.?ÿ But yeah, the court wants congressional action to define regulatory wetlands of EPA in a reasonable manner. Can't comment on the fine; that case has not been linked in this thread, and I'm not familiar with it.
Yes it is?ÿ an open question.?ÿ A plurality decision does not bind anyone. It is up to the lower courts to try to pick and choose from the different decisions, or if that is impossible, come up with their own solution.?ÿ
If you don't believe me check out the circuit court decisions since then. The?ÿ 1st, 5th, 6th, 8th, 9th and 11th have all looked at this and come to different conclusions.?ÿ?ÿ
In Chief Justice Roberts' own words in his opinion on the case "?ÿIt is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress?? limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case-by-case basis. "
You may be confusing this case with Solid Waste Agency of Northern Cook Cty.?ÿv.?ÿArmy Corps of Engineers?ÿwhich was an earlier case that did limit the authority of the government, but what those limits are haven't been determined yet. That's what Rapanos was supposed to do.?ÿ
From the justice department per the fine: https://www.justice.gov/archive/opa/pr/2008/December/08-enrd-1152.html?ÿ
I agree the question is open on exactly what the limits are.?ÿ Appears doubtful there will be any resolution on that question unless Congress acts and re-writes the darn thing.?ÿ Even then, I see a legal battle.
But I would distinguish SWANCC from Rapanos.?ÿ The first stated a rule for open waters.?ÿ The second struggled to apply that rule and further define it in regard to wetlands and temporary open waters.?ÿ
Thanks for the clarifications. I was sadly mistaken that SCOTUS had settled the question. No wonder the EPA and COE have "gone back to the drawing board".
This is a pretty good report on current affairs:
https://www.vox.com/energy-and-environment/2017/2/28/14761236/wotus-waters-united-states-rule-trump
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