Feb 18, 2020
On January 23, 2020 the United States Environmental Protection Agency and United States Corps of Engineers announced the finalization of a new rule addressing the Clean Water Act definition of Waters of the United States (“WOTUS”).
The definition of WOTUS is considered to be one of the three critical jurisdictional terms in the Clean Water Act. It is also important because it is relevant to non-National Pollution Discharge Elimination System programs including:
The scope of the definition of WOTUS has been the subject of frequent litigation, legislative oversight, rulemakings, and public policy debates since the enactment of the modern version of the Clean Water Act in 1972. This current version will also likely be met by lawsuits from environmental groups and some states while at the same time it is being championed by organizations representing farming and ranching interests, industry groups, and real estate development groups.
In a press release, EPA Administrator Andrew Wheeler announced that the through the new rule the “EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects. After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
According to the EPA, the revised WOTUS definition identifies four “clear” categories of waters that are federally regulated under the Clean Water Act which include:
Under the new rule, the following waters are not subject to Clean Water Act jurisdiction:
The new rule also addresses additional issues related to Clean Water Act jurisdiction including:
What does this mean to the practical application of the rule?
The new rule eliminates Clean Water Act protections for more than 18% of our streams and a majority of the nation’s wetlands. It removes protections for ephemeral streams, which flow only after rain or during snowmelt. Hydrologists note that although these streams are often dry, there are times during the year where torrential downpours rain or snowmelt can carry significant pollutants downstream into more consistently flowing waterways, impacting recreation areas and drinking water intakes. According to the U.S. Geological Survey, ephemeral streams account for more than 18% of waterways nationwide but are more common in the arid West: accounting for more than 85% of the streams in Nevada. The rule also removes protections for wetlands that do not have surface water connections to intermittent or perennial streams, which account for more than 51% of the nation’s wetlands. Wetlands are important because they function as our “kidneys”, filtering pollution, buffering stormwater, and absorbing floodwaters, as well as providing critical habitat for wildlife, recreation, and shoreline erosion control, among others.
In the middle of the challenges to craft an appropriate scope for WOTUS, it should be noted that delegated states have their own statutes to authorize environmental regulatory activities. And, many of these states have jurisdictional definitions that may be broader than the corresponding federal terms.
View the pre-publication rule and preamble at epa.gov/nwpr/final-rule-navigable-waters-protection-rule.