Regulatory Developments, Special Topics in Environmental Management

WOTUS to be Redefined Again

On June 9, 2021, the EPA and the Department of the Army announced that the definition of “waters of the United States” (WOTUS) will again be revised. How WOTUS is defined determines the geographical scope of federal jurisdiction under the Clean Water Act (CWA). Any body of water defined as WOTUS requires a permit for dredging, dirt fill, or discharges.

WOTUS redefined
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The definition of WOTUS is one of the most fiercely contested and misunderstood rules under the EPA’s jurisdiction. And, to make it even more confusing, that jurisdiction is shared with the Army Corps of Engineers.

One aspect of the WOTUS definition has always been clear: It applies to U.S. oceans, major navigable rivers, lakes, and any connected waterways. What is not so clear is how to handle wetlands and loosely connected waterways such as streams that are dry for part of the year.

The Obama WOTUS Definition

In June 2015, the Obama administration attempted to define WOTUS by expanding its definition to clarify which bodies of water are automatically covered by the CWA and which must still be dealt with on a case-by-case basis.

That rule defined automatically protected waterways as any that have a bed, a bank, and a high-water mark, according to VOX. This included many streams that remain dry part of the year. That automatic protection was also extended to wetlands and ponds located within 100 feet of or within the 100-year floodplain.

It also included “[c]ertain ‘isolated’ waters that are not connected to navigable waters … if they have a ‘significant nexus’ to protected waters — like the vernal pools of California,” adds VOX. “The rule also explicitly exempted a number of bodies of water often found on farms, such as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that would revert to dry land if irrigation were to stop.”

The Trump WOTUS Definition

The Trump administration’s definition made a clear distinction between federally protected wetlands and state-protected wetlands.

“The revised definition [identified] four clear categories of waters that are federally regulated under the [CWA]: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters,” according to Water Finance & Management. “These four categories protect the nation’s navigable waters and the core tributary systems that flow into those waters.

“This final action also details what waters are not subject to federal control, including features that only contain water in direct response to rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems.”

The Trump administration’s definition of WOTUS pulled “back federal oversight of at least 51 percent of wetlands and 18 percent of streams — many of which had been protected since the Reagan administration,” says E&E News.

Both Obama’s and Trump’s WOTUS definitions were extremely controversial and the subject of multiple court battles.

The Biden WOTUS Definition

In April, EPA Administrator Michael Regan told Congress it was not his intention to return to the Obama administration’s definition of WOTUS, according to AgWeb.

The current administration’s decision to again redefine WOTUS means the “Navigable Waters Protection Rule (NWPR) – the most recent regulatory definition of WOTUS – which was confirmed and put into effect just less than a year ago on June 22, 2020,” will also be set aside.

“After reviewing the [NWPR] as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” Regan says in an EPA press release. “We are committed to establishing a durable definition of [WOTUS] based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”

“Communities deserve to have our nation’s waters protected. However, the [NWPR] has resulted in a 25-percentage point reduction in determinations of waters that would otherwise be afforded protection,” says Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham in the EPA press release.

The agencies have concluded that the current NWPR has significantly reduced water protections, with damaging environmental impacts.

The lack of protections is particularly drastic in arid states, like New Mexico and Arizona, where nearly every 1 of over 1,500 streams assessed has been found to be non-jurisdictional,” according to the EPA press release. “The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the [NWPR], but no longer do.

“As a result of these findings, today, the Department of Justice is filing a motion requesting remand of the rule,” the press release adds. “Today’s action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era [NWPR].”

Regan has gone on record to state that “he’s trying to strike the delicate balance between conservation and development that both the Trump and Obama administrations failed to reach,” according to The Washington Post.

It’s hoped that the new rulemaking will stem what many have classified as a “staggering loss of wetlands.”

The first step is for the Biden administration to repeal the Trump definition, then establish its own WOTUS definition. The fate of the new definition could ultimately reside in the hands of the U.S. Supreme Court. The WOTUS definition has been up for debate since the CWA was passed in 1972, The Washington Post adds.

“In a 2006 decision, Justice Anthony M. Kennedy wrote federal officials could step in when there was a ‘significant nexus’ between smaller and larger bodies of water. The Obama administration wrote its rule around that standard.

“But after Kennedy’s retirement and with the Supreme Court taking an even more conservative turn with the appointments of three justices by Trump, it’s unclear what sort of rule could now pass muster.”

“That is the $64 million question, isn’t it?” says Patrick Parenteau, a professor of natural resources law at Vermont Law School. “It’s got to be a rule that gets five votes on the Supreme Court, and that’s going to be … difficult,” The Washington Post notes.

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