For the last week, we’ve looked at some of the clarifications made in, and ambiguities remaining after the Administration finalized, the final rule redefining federal jurisdiction under the Clean Water Act. So far, we’ve only addressed changes made by the Agencies, but today and tomorrow we will note two provisions they didn’t change. As a result, time has passed by these provisions, with possibly significant consequences.

The first static provision is the definition of “wetlands.” As most of you know, while the final rule affects the entirety of the Clean Water Act, much of the controversy over the scope of the Act – including the two Supreme Court decisions that engendered much of the uncertainty – related to the jurisdiction of wetlands. The jurisdictional status of wetlands is particularly nettlesome, in part because wetlands exist across a continuum – some are always “wet,” and some almost always dry; there is no clear dividing line between “wetlands” and “uplands.” Thus, EPA and the Corps have spent decades fine tuning the methodology for determining what is a wetland and what is not.

If you’ll indulge us in a short paragraph of background: Under current practice, wetlands are identified by proof of hydrology (water at or near the surface), hydrophytic vegetation (vegetation able to survive in saturated soils), and hydric soils (soils resulting from hydraulic saturation and the lifecycle of hydrophilic vegetation). All three are required for an area to be considered “wetland.” The process of identifying the nature and scope of the required hydrology, vegetation and soils (referred to as “the three parameter test”) began in the 1980s and was partially memorialized in 1987 with the Corps’ manual for wetlands delineation. In 1993, EPA adopted the 1987 manual; in 2002, the Corps began to create regional supplements to the 1987 manual for each of ten discrete regions across the country. All of these protocols utilize the three parameter test.

“Everybody’s so different. I haven’t changed.” – Joe Walsh

The Administration spent little time in either the proposed or final rules addressing the definition of wetlands, apparently because they didn’t propose to change it. However, while the definition of wetlands hasn’t changed, almost everything surrounding it has, because the current definition of wetlands effectively predates the adoption of the 1987 manual. The current definition was introduced before 1987 and finalized while the status of the manual was still in flux.

Confusion might arise because this historic definition could be read to not require hydric soils. With bold numbers added for emphasis, the agencies define wetlands as “those areas (1) that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and (2) that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” Thus, technically, the definition only requires the presence of hydrology and vegetation. While the vegetation needs to be adapted to living in saturated soil, the definition doesn’t actually require the presence of that soil, as the current practice does.

This distinction is not merely semantic. Hydric soils take longer to form than the other two indicators. Hydrology can arise almost instantaneously – for example, on a slope wetland where the underground conditions change, causing the water to daylight in a different area. Vegetation takes longer to appear, but could feasibly form in one long or two shorter growing seasons. Anyone who has killed a houseplant by overwatering it knows that one can fairly quickly drown a plant, thus clearing the decks for the arrival of hydrophilic vegetation. But soils are only created over time as the hydric vegetation creates new soils as it works to get oxygen in a wet environment. Thus, soils are typically the last indicator to form, and are therefore an important indicator of the long-term presence of a wetland.

Soils are also more likely to be left behind after vegetation is cleared for land development. Thus, the presence or absence of soils is very useful in enforcement settings to help settle disputes about the pre-clearing condition of the area at issue.

We’re not saying that, because it is unchanged, the definition of wetlands will be interpreted to omit the requirement that wetlands contain hydric soils. There is nothing in the rule to suggest that the Agencies intended to change the current practice and, to the contrary, the preamble contains some language supporting the need for hydric soils. However, the agencies could certainly have modified the definition to explicitly incorporate the three parameter test, and their failure to do so creates uncertainty where there shouldn’t be any. Given that the jurisdictional definitions of the Act only change every three decades or so, it will be a while before the Agencies again have the opportunity to clarify their intent.

Tomorrow, we’ll look at the static definition of “traditionally navigable waters.”

This is the sixth in a series of blog posts about the Obama Administration’s new rule redefining the scope of the waters subject to federal jurisdiction under the Clean Water Act