September 2023 - Parks & Recreation - 32

LAW REVIEW
A subsequent rule in 2019 replaced
the 2015 rule with a more
narrow definition of CWA " waters "
that limited jurisdiction to traditional
navigable waters and their
tributaries,
lakes and " adjacent "
wetlands. The 2019 rule also narrowed
the definition of " adjacent, "
limiting it to wetlands that " abut "
covered waters, are flooded by
those waters, or are separated from
those waters by features, like berms
or barriers. The federal district
court had vacated this 2019 rule.
In 2023, the agencies promulgated
another rule that more broadly defined
" waters of the United States "
regulation under the CWA:
[T]raditional navigable waters,
interstate waters, and the territorial
seas, as well as their tributaries
and adjacent wetlands, are waters
of the United States. So are
any intrastate lakes and ponds,
streams, or wetlands that either
have a continuous surface connection
to categorically included waters
or have a significant nexus to
interstate or traditional navigable
waters. 40 CFR §120.2.
As characterized by the Court,
this 2023 rule had reiterated the
earlier agency view that " a significant
nexus requires consideration
of a list of open-ended factors. "
Further, the 2023 rule acknowledged
" field work is often necessary
to confirm the presence of a
wetland " under this
regulatory
definition of CWA " waters of the
United States. " In addition, the
2023 rule instructed " local agents
to continue using the Corps' Wetlands
Delineation Manual. "
In so doing, the agencies maintained
that the significant-nexus test
had been and remained sufficient
to establish CWA jurisdiction over
" adjacent wetlands. " The Court,
however, noted the EPA had conceded
" almost all waters and wetlands
are potentially susceptible to
regulation under that test. "
Landowner Dilemma
In the opinion of the Court, this
open-ended " significant-nexus test "
placed " many property owners in
a precarious position because it is
often difficult to determine whether
a particular piece of property contains
waters of the United States " :
[T]he CWA can sweep broadly
enough to criminalize mundane
activities like moving dirt; this unchecked
definition of " the waters
of the United States " means that
a staggering array of landowners
are at risk of criminal prosecution
or onerous civil penalties.
CWA " Navigable Waters "
In determining " the extent of the
CWA's
geographical
reach, "
the
Court considered the text of the
CWA. As cited by the Court, the
CWA applied to " navigable waters, "
which had " a well-established meaning
at the time of the CWA's enactment, "
unlike the less well-known
CWA term " waters of the United
States. " According to the Court,
this " frustrating drafting choice has
led to decades of litigation " and the
Court's resolve in this particular decision
to " try to make sense of the
terms Congress chose to adopt. "
In defining " navigable waters, "
the Court found the CWA's deliberate
use of the plural
term
" waters " would typically refer
to " bodies of water like streams,
oceans, rivers and lakes " with geographical
features encompassing
" only those relatively permanent,
standing or continuously flowing
bodies of water. "
While noting " wetlands are not
included in traditional notions of
'waters,' " the Court acknowledged
" the CWA extends to more than traditional
navigable waters. " In so doing,
the Court found " Congress had
focused the CWA on " its traditional
jurisdiction over waters that were or
The EPA had argued that CWA " waters "
is " naturally read to encompass wetlands "
because the " presence of water is
'universally regarded as the most basic
feature of wetlands.' "
32 Parks & Recreation | SEP T EMBER 2 0 2 3
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September 2023 - Parks & Recreation

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