We have devoted a lot of our regulatory updates to the issue of which waters are regulated (by the federal government) and which are not. This is a critical issue that has been unresolved for a number of years. However, with some recent regulatory developments, we may be getting closer to defining waters of the United States, or WOTUS.
WOTUS Politics and Clean Water
The mention of WOTUS to those of us in the industry reminds us of the partisan divide that has stalled any progress on this issue of defining federally-regulated waters.
No reasonable person disputes either (1) the necessity of clean water or (2) the role clean water plays in a healthy society and healthy economy. When water is polluted, it can be a serious human health and environmental issue. Recall the January 2014 spill of 4-Methylcyclohexane Methanol that resulted in a loss of public water for 300,000 people in West Virginia. This was the same year when cyanobacteria pollution in Lake Erie forced the residents of Toledo, Ohio, to use bottled water.
Likewise, a level of certainty that your industrial operation/development/farming activity etc. is or is not regulated under the Clean Water Act is a reasonable expectation.
Clean Water and Regulatory Certainty
The WOTUS question comes down to how do we create a regulatory structure that most sensibly protects our water for human health/consumption and the environment while providing regulatory certainty? This is no small task.
WOTUS Proposed Regulation
The EPA’s most recent attempt to address WOTUS is a December 18, 2018, announcement regarding a proposed revision to the WOTUS Rule. The proposed rule is likely to be published in early 2019 with a 60-day comment period.
With the history of litigation related to this rule, passage of the WOTUS rule is anything but a sure bet. With that said, the proposed WOTUS rule includes six “clear categories” of waters that would be considered waters of the US:
- Traditional Navigable Waters
- Certain Ditches
- Certain Lakes and Ponds
- Adjacent Wetlands
Importantly, the proposal outlines what would not be a water of the US. A few of these exclusions are outlined below (see the proposed rule for details).
- Ephemeral features that contain water only during, or in response to, rainfall.
- Ditches that do not meet the proposed conditions necessary to be considered jurisdictional, including most farm and roadside ditches.
- Prior converted cropland.
- Certain stormwater retention structures.
- Certain wastewater detention structures.
As you might suspect, within days of the announced proposed rule, the aforementioned partisan positions were being promoted. While this voicing of opinions is part of our democratic process, let’s hope we can have constructive input during the comment period and find a way to protect our water while allowing certainty for businesses to operate.
If your group is preparing comments and is in need of some technical expertise in your submission, we may be able of offer some support. Our senior hydrogeologist, Dr. Michael Sklash, evaluated the WOTUS associated nexus issue in the Rapanos case. You can contact me if you have questions.
Even the most optimistic among us knows that resolving WOTUS with the most recent proposal is far from a sure bet. It’s far safer to bet on more WOTUS litigation.
If you have any questions or if we can help you with a water permitting issue, please let me know, and I can connect you with one of my colleagues.