Thursday October 17, 2024
Somach Simmons and Dunn —
The limits to federal jurisdiction over “waters of the United States” (WOTUS) have continued to develop following the Supreme Court’s landmark decision in Sackett v. Environmental Protection Agency, as federal district courts begin to vary in determining federal Clean Water Act jurisdiction over manmade ditches and canals.
A critical question, subject to extensive rulemaking and litigation over past decades, involves the extent to which manmade ditches and canals qualify as waters of the United States subject to federal regulation. In 2001, in Headwaters Inc. v. Talent Irrigation District, the Ninth Circuit Court of Appeal recognized manmade irrigation canals as WOTUS if water flowed, at least occasionally, through such features into natural streams. The United States Environmental Protection Agency (EPA) took a consistent view, defining WOTUS to include drainage ditches, even with only intermittent flow, provided that they were tributary to a water of the United States and had perceptible ordinary high water marks.
The landscape changed with the Supreme Court’s 2006 decision in Rapanos v. United States and Carabell v. United States (collectively referred to as Rapanos), in which the plurality opinion instituted the “relatively permanent” test (“relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, plus wetlands with a “continuous surface connection” to such relatively permanent water bodies, are WOTUS) while a concurrence relied on the “significant nexus” test (WOTUS include wetlands that possess a “significant nexus” to waters that are or were navigable in fact or that could reasonably be so made). The EPA and Army Corps of Engineers issued guidance in 2008, advising that waters that satisfied either test qualified as WOTUS. The Trump and Biden Administrations subsequently adopted competing definitions of WOTUS within the confines of the Rapanos decision.