By Margaret Todd
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On September 11, 2019, the EPA announced the formal revocation of the Clean Water Act “waters of the United States” (WOTUS) rule. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers created the WOTUS rule in 2015 in an attempt to expand protections of wetlands connecting to navigable waterways. Challenges to the WOTUS rule centered on regulatory overreach and interference with states’ authority to regulate their waterways.
The legal specialists at ALEI have blogged about the twists and turn in the legal saga of the Clean Water Act (CWA) WOTUS rule over the years. For a quick review, check out this past post, and for more information type “WOTUS” into the search feature of this blog.
The repeal of the WOTUS rule was a priority of the Trump Administration. In 2017, shortly after coming into office, Trump signed an executive order directing the EPA to review and revise the WOTUS rule. The executive order specifically directed the EPA to define “navigable waters” in a manner consistent with the decision in Rapanos v. United States. The Rapanos case defined “navigable waters” as only relatively permanent bodies of water, as opposed to ordinarily dry channels through which water flows only occasionally or intermittently, such as drainage ditches or stormwater retention ponds. Under Rapanos, wetlands were excluded from protections unless there was a significant nexus, or connection, with a navigable body of water.
What does the WOTUS repeal mean for farmers?
According to the EPA news release, the WOTUS rule failed to adequately recognize, preserve, and protect the rights of states to manage their own land and water resources. With this official repeal of the WOTUS rule by EPA, the agencies responsible for enforcing the CWA will implement the pre-2015 regulations until a revised definition is adopted. the WOTUS rule has been effective in Maryland since late 2018 but will now revert to the pre-2015 rule, which is already in place in over 26 states due to pending judicial challenges. The relaxed regulation may mean that farmers and developers will have to worry about fewer permitting hurdles.
What’s Next?
The repeal was Step One. EPA’s “Step 2” began in 2018, when the agency invited comments to its proposed revisions of the WOTUS rule that aims to clarify the federal authority under the CWA. The proposed rule was published in the Federal Register (FR) on February 14, 2019. The comment period closed in April 2019, and the EPA plans to adopt the new rule by the end of 2019.
The proposed revision will have a much narrower definition of the types of streams and wetlands that are subject to the CWA permitting requirements. In response to comments it received on the proposal, EPA plans to lay out six categories of WOTUS; any feature not explicitly identified in the new definition would be unprotected under the CWA. The agency also plans to exclude certain waters it considers temporary, isolated, or ditches, including:
· Any feature that flows only during or immediately after it rains—including what are sometimes called ephemeral streams;
· Groundwater;
· Many ditches, including most farm ditches and transportation ditches;
· Prior converted cropland;
· Stormwater control systems constructed in upland;
· Wastewater recycling structures such as detention, retention and infiltration basins and ponds, and ground water recharge basins constructed in upland; and
· Waste treatment systems.
Additionally, EPA proposes to only protect “adjacent wetlands,” which would be defined as wetlands that physically touch or have a surface water connection with other jurisdictional waters. The revised rule will also create distinctions between waters subject to federal authority and waters subject to the sole control of the states and tribes.
Opponents of the revised WOTUS rule argue that the proposed changes do little to clarify what qualifies as WOTUS, and instead create categories so generalized that states will have a hard time figuring out what scientifically falls into the jurisdiction of the CWA. Whether the proposed rule will shift the burden of oversight and funding of CWA protections too heavily onto the states and tribal territories is another concern. Combined, these would encourage polluters and place stress on landowners and farmers who make good faith efforts to protect and improve the water quality in their communities.
Stay tuned for the next installment of the WOTUS rule legal saga when EPA officially adopts the revised WOTUS rule in late 2019 or early 2020. There will no doubt be further legal challenges to the adopted rule.