In California, WOTS up WOTUS?

By Wendy L. Manley and Bruce S. Flushman

This month, the Environmental Protection Agency (EPA) and Army Corps of Engineers finalized a rule intended to “increase[s] clarity as to the scope of ‘waters of the United States’ (WOTUS) federally regulated under the [Clean Water] Act” (2019 Repeal). The 2019 Repeal “clarified” the act by annulling the Obama-era rule (2015 WOTUS Rule). The 2015 WOTUS Rule was adopted to end confusion and conflicts resulting from pre-2015 Supreme Court interpretations of the scope of Clean Water Act (CWA) jurisdiction. One justification for this repeal urged by the agencies was to acknowledge the “primary” responsibility of states for “ordinary land-use decisions.”

Repealing the 2015 WOTUS Rule eliminates a patchwork of regulations created from numerous challenges to the rule, which had resulted in some states remaining subject to the 2015 WOTUS Rule while others were not. Repealing the 2015 WOTUS Rule restores the 1986 WOTUS rules nationwide, while, on the other hand, reverting to the state of confusion created by historical Supreme Court interpretations that the 2015 WOTUS Rule was intended to clarify. “With this final rule [the 2019 Repeal], the regulations defining the scope of federal CWA jurisdiction will be those portions of the CFR [Code of Federal Regulations] as they existed before the amendments promulgated in the 2015 Rule.”

Having accomplished the repeal of the 2015 WOTUS Rule, the agencies’ next step will be to issue new regulations, initially released as a proposed rule in December 2018. Pursuant to President Trump’s Executive Order, the proposed regulatory definition of WOTUS is expected to follow the narrower opinion of Justice Scalia in the U.S. Supreme Court’s 2006 Rapanos decision, requiring a direct hydrologic connection. This contrasts with Justice Kennedy’s “significant nexus” approach that had been regarded as the controlling law of the Rapanos decision. The new regulations are expected to generate more controversy and challenges than the 2019 Repeal.

California opposed the 2019 Repeal, arguing that repeal of the 2015 WOTUS Rule violated the Administrative Procedure Act. California claimed the agencies ignored factual findings supporting the 2015 WOTUS Rule and failed to articulate a satisfactory reason for reinstating the 1986 WOTUS definition. Although it seems likely California will challenge the overturning of 2015 WOTUS Rule, when and in what context that challenge will be made is not yet clear. 

California, however, has been diligent in countering these federal actions. Many of the Waters of the State (WOTS), as is typical of the arid West, are intermittent or ephemeral and, at least arguably, would not be subject to federal authority under the 1986 WOTUS definition or any rule based on Scalia’s narrower definition. In response, California has expanded its authority to protect its WOTS. 

On April 2, 2019, the State Water Resources Control Board adopted the State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State (WOTS Rule). The WOTS Rule defines the reach of, and procedures under, existing state permitting authority governing discharge of dredged or fill material into waters and wetlands: both “certifications” required by section 401 of the federal CWA and “waste discharge requirements” issued pursuant to the state Porter-Cologne Water Quality Control Act. 

The WOTS Rule’s definition of “wetland” differs from the one long used by the State Water Board and its Regional Water Quality Control Boards, as well as the U.S. Army Corps of Engineers and the EPA under the CWA. While the proposed state definition refers to the same three factors used by the federal authorities—hydrology, soils and vegetation—it allows an area devoid of vegetation to be classified as a wetland if wetland hydrology and soils are present. It also establishes a “Jurisdictional Framework” designed to distinguish some areas that meet the technical definition of wetland, but nonetheless are not regarded as WOTS, putting a burden on the permit applicant to demonstrate that the wetland is not a water of the state.

And the WOTS Rule establishes what it calls “wetland delineation procedures” that potentially broaden the scope of areas that would qualify as WOTS. For example, the delineation procedure supports adoption of the Corps’ wetland delineation manual and regional supplements used to identify wetlands and delineate their boundaries, but allows the delineation method to be modified to allow areas that lack vegetation, but meet the state definition, to be included. The WOTS Rule also prescribes detailed “procedures” for submittal and review of applications for authorization to discharge dredged or fill material into waters of the state, including a “completeness determination,” which in itself may be troublesome. Most critically, the new procedures require applicants to demonstrate their proposed projects are the least environmentally damaging practicable alternatives (LEDPA) to accomplish the overall project purposes. Although the WOTS Rule alternatives analysis is based on the EPA’s Guidelines, it changes and extends those requirements. 

Finally, the objective of the WOTS Rule is to ensure “no overall net loss and a long-term net gain” of wetlands in California in a fashion that “respects” private property and also includes requirements for mitigation of impacts to wetlands (one-to-one) and mitigation plan specifications. The mitigation plan must analyze the entire watershed within which the project and mitigation are located and whether and how climate change might affect the mitigation.

The WOTS Rule must receive approval by the Office of Administrative Law and EPA and, consequently, is not expected to take effect until sometime in 2020. The State Board acknowledges the regulated community will need time to analyze the new rules and their application.

Even though the WOTS Rule will not be effective for some time, its impact, at least in California, will trump much of the impact of the 2019 Repeal and may impose new burdens on projects requiring permits to fill the broadly defined WOTS. Given the federal agencies’ stated rationale for the 2019 Repeal of letting states regulate their land and water resources, this may be a case of “be careful what you wish for.”

The saga continues.

Wendy L. Manley and Bruce S. Flushman are attorneys in the Environmental and Land Use Practice Groups at Wendel Rosen LLP.

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