Addressing potential WOTUS revisions
A draft of the Trump Administration’s long-awaited rule replacing the definitions used to determine what waterbodies are subject to federal jurisdiction under the Clean Water Act (CWA) was released Dec. 11, 2018. During a Dec. 10, 2018, press conference, the U.S. EPA and U.S. Army Corps of Engineers (USACE) said the proposed rule would provide clarity, predictability and consistency so the regulated community can easily understand where the CWA does or does not apply. The new definitions are intended to be simpler and clearer, helping landowners understand when projects will require a federal permit without spending thousands of dollars on consultants. However, does it go farther than just replacing the 2015 rules?
Waterbodies subject to federal jurisdiction under the CWA are termed “waters of the United States” (WOTUS) and subject to the act’s policies on water quality protection, wetlands dredge and fill permitting, and protection of endangered species. Changing the definitions of what constitutes waterbodies subject to federal jurisdiction will have broad impacts on local governments, other regulated interests and the environment.
In 2014, the Obama Administration initiated a rule-making exercise with a stated intent to clarify the application of the CWA, although that was accomplished by significantly expanding the WOTUS definitions. The final rules were adopted in late 2015, generating an enormous public outcry from the regulated community and more than 70 challenges in various federal courts to both the rules and the manner in which they were adopted.
Significantly, the 2015 rules expanded the coverage of the CWA by adding the terms “adjacent” and “significant nexus.” Waters that are adjacent include all wetlands within, abutting or connecting the ordinary high water mark of jurisdictional water, and “neighboring” waters within 100 ft of jurisdictional water or within 1,500 ft of the high tide line of waters used for interstate commerce. A significant nexus test was applied primarily to waters within the 100-year floodplain of water used for interstate commerce or within 4,000 ft of an ordinary high water mark. Waters within those areas may be jurisdictional if the water “significantly affects” the biological, chemical or physical integrity of neighboring jurisdictional water.
Thus far, the Trump Administration’s general environmental policy primarily has been centered on reducing regulatory burdens. Under the 2018 proposal of EPA and USACE, only traditional navigable waters, tributaries to those waters, lakes and ponds, certain canals, impoundments of jurisdictional waters, and wetlands abutting or with a continuous direct connection to jurisdictional water, would be subject to federal regulations.
The rule also details what are not WOTUS, such as ephemeral features that only contain water during or in response to rainfall, most ditches, prior converted cropland, storm water control features, and waste treatment systems. The 2018 rule does not contain a significant nexus test and has a more limited use of the term “adjacent.” However, it adds the new term “typical year”—the normal range of precipitation for an area over the past 30 years—to be used when determining if some waters are jurisdictional.
While the Obama rule was expansive, the Trump rule returns some policies implementing the CWA back to those in the late 1980s. The 2015 rules were so expansive that they likely would have the paradoxical effect of limiting the ability of local governments to direct resources to specific waterbody improvement projects. The 2018 rules ignore accepted science by not recognizing the impact that certain waters can have on other waterbodies even without a direct or continuous connection.
EPA and USACE hope to have a final rule adopted by September 2019. Before then, the proposed draft should be revised to retain measures that recognize the scientifically confirmed connectivity that exists between certain types of waters, while at the same time clarify jurisdictional questions and lessen burdens on the regulated community, agriculture and local governments.