(L-R )Carlyn Kowalsky, Partner with Nason Yeager Gerson Harris & Fumero, John Fumero, Partner with Nason Yeager Gerson Harris & Fumero, Boca Raton, Jack Rice, Attorney with Nason Yeager Gerson Harris & Fumero, Boca Raton

This is the confluence of science and politics. The latest attempt to define how to protect the Waters of the United States (WOTUS), is actually the fifth decade of a debate over which waters the federal government should regulate. The Trump administration is seeking yet another rewrite of the rules with the stated goal of providing clarity and certainty for landowners and the regulated community. Opponents argue the proposed regulations are bad for environmental protection.

The Clean Water Act of 1972 (the act) has flowed through all three branches of the federal government. The Trump administration's 2018 proposed rule released last year, would adjust wetland delineation lines drawn by the Obama administration which, in turn, had replaced George W. Bush administration guidelines. The repeated rewriting of the rules can be sourced to U.S. Supreme Court (SCOTUS) decisions in the 2000s.

A 2006 opinion from a plurality of SCOTUS judges said that waters covered under the act include "only those relatively permanent, standing or continuously flowing bodies of water" such as streams, oceans, rivers and lakes. Not included were channels through which "water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." The opinion authored by Justice Antonin Scalia provides that wetlands are federally regulated if they are always connected to "Waters of the United States," the official term for the bodies being contested.

Justice Anthony Kennedy wrote in a concurring opinion based on yet another SCOTUS ruling in 2001 that wetlands could meet criteria for regulation when they "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters." Justice John Paul Stevens wrote a dissent that the Army Corp of Engineers should interpret their regulations that stretched the definition of "adjacent to" to include "bordering, contiguous or neighboring."

Two recent federal court challenges led to an untenable situation in which the Obama administration rules are in effect in 22 states and the District of Columbia and are subject to preliminary injunctions in the other 28.

In 2017, President Donald J. Trump directed federal agencies to consider changing the definition of WOTUS and consider using Scalia's interpretation of jurisdictional waters. His administration followed up with a proposed rule that would scale back the Obama administration's addition of tributaries and adjacent waters, and impose a "significant nexus" test.

The Trump administration has followed up with a proposed 2019 rule, including a two-step process to review and revise the definition of WOTUS consistent with that order. Step one returns the regulatory definition to the days before the Obama administration and is scheduled to become effective by end of year 2020.

In February, the agencies responsible for writing the rules, the EPA and Army Corps of Engineers, published the second step: Revise the definition of waters of the U.S. going forward. What's included and not included has led to significant public debate.

Under Trump administration direction, the agencies propose limiting the definition to WOTUS that are physically and quantifiably connected to traditional navigable waters. Adjacent wetlands are included if they are "inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions."

Clean Water Act regulated waters are divided into six broad categories, some of which are obvious and others that depend on one's point of view:

• Traditional navigable waters: These are large rivers and lakes, tidal waters and territorial seas used in interstate or foreign commerce. This includes the Atlantic Ocean, Mississippi River, the Great Lakes and tidally influenced waterbodies including wetlands along coastlines. We in South Florida know these places like the Intracoastal Waterway and Lake Okeechobee.
• Tributaries: They are rivers and streams that flow into the navigable waters. Tributaries must flow more often than just when it rains, a change from earlier rules.
• Certain ditches: They fall under federal regulation if they can be navigated, are subject to tidal ebb and flow, or if they were constructed in a tributary or built in adjacent wetlands. Ditches constructed in dry land areas known as upland and those that flow only at certain times would no longer under federal oversight.
• Impoundments of waters: (Think manmade lakes) will continue to be federally regulated, just as they were in the Bush and Obama administrations.
• Certain lakes and ponds: In this new category, they must be considered navigable. Their waters flow to a traditionally navigable water either directly or via another water of the United States, or through surface waters not under federal oversight so long as those waters convey perennial or intermittent flow. Fewer lakes and ponds would qualify than under the Obama rule which had a broader definition of neighboring.
• Adjacent wetlands: Because wetlands behind a berm or dike are no longer considered adjacent, fewer of them would qualify for regulation than under the Obama administration.

The Trump proposal exempts categories close to business interests in usually dry areas such as: prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds; water-filled depressions incidental to mining or construction activity; stormwater control features; wastewater recycling structures constructed in upland; and waste treatment systems.

Public comment for the two steps ended in April 2019. Two months later, a U.S. Senate committee held its first hearing on them. Other congressional committees may join in. Once the proposed rule is finalized, it will likely face numerous lawsuits from environmental groups and others.

Who's on which side? As you might expect, farmers, ranchers, developers, manufacturers, mining companies and landowners that consider the Obama rules too expansive on how they could use their lands and waters favor the proposal. Eleven states, including Florida, won federal court battles against Obama administration rules.

Environmental groups are against loosening restrictions. Joining them are an amalgam of commercial and recreational interests that think the rollbacks will harm their members and environmental protection by allowing more pollution. They include the American Fisheries Society and Backcountry Hunters and Anglers.

We can expect them and other groups to challenge the final rules, ending very likely with another Supreme Court decision. The hope is that this third round of review will produce clear and defensible guidance for everyone.

John J. Fumero is a shareholder at  Nason, Yeager, Gerson, Harris & Fumero. His practice includes environmental, land use, land development, administrative, zoning, governmental and civil trial law. 

Carlyn H. Kowalsky, a partner at the firm. Her practice focuses on environmental, transactional, real estate, employment, government and administrative law.  She has represented government clients, water and wastewater utilities, developers and landowners.

John K. "Jack" Rice is an attorney at the firm. He practices primarily in the areas of land use/zoning, administrative and governmental law, environmental law and litigation.