In a debate that is nearly as old as the foundation of our major environmental protection laws, we have a new chapter.  Not surprisingly, the most recent attempt to define jurisdictional waters in the United States is being met with both praise and derision.

As we shared in our December 6, 2019, blog, addressing the Waters of the United States (WOTUS) definition was listed as a top priority for the US Environmental Protection Agency in 2020.

And indeed, on January 23, 2020, the EPA announced the Navigable Water Protection Rule, or NWPR.

2015 WOTUS Was DOA

You may recall that the 2015 attempt to address the WOTUS issue proved to be extremely controversial and was met with lawsuits that ended up derailing the entire rule. One of the biggest sticking points in 2015 was the “reach” of the rule. In some states, it was estimated that nearly 100% of the land would fall under the 2015 WOTUS rule.

Statement From Andrew Wheeler

EPA Administrator, Andrew Wheeler, stated on Twitter, “Today at The National Association of Home Builders, I along with Assistant Secretary of Army for Civil Works, was proud to unveil the new Navigable Waters Protection Rule implementing the original intent of congress and the Clean Water Act while respecting the rights of states and tribes, ending decades of regulatory uncertainty.”

Defining waters of the United States has remained elusive for decades. The latest attempt to define regulated waters is in the Navigable Water Protection Rule.

Dissent and Support for NWPR

As you might expect, there are opinions in dissent and in support for the NWPR.  California’s Attorney General, Xavier Becerra, said the announcement was an “…unlawful assault on the Clean Water Act…”

Michigan Governor, Gretchen Whitmer, said, “Today’s rollback of WOTUS, a clean water protection, is yet another decision the Trump Admin has made that will harm Michigan’s environment and economy.”

Presidential hopeful, Elizabeth Warren, tweeted, “Government works great for giant corporations that want to dump chemicals & toxic waste into streams & wetlands. It’s just not working for families that want to be able to drink water without being poisoned. This is corruption, plain and simple.”

Iowa Senator, Joni Ernst, expressed her support saying, “I’m proud that we’ve successfully scrapped the Obama-era rule & are providing the predictability & certainty our hardworking farmers, manufacturers, and landowners deserve.”

Zippy Duvall, President of the American Farm Bureau, said, “…we support the new clean water rule, it provides clarity and certainty, allowing farmers to understand water regulations without having to hire teams of consultants and lawyers.”

These comments reflect how polarizing this issue has been for decades.

These Are Waters of the United States

According to EHS Daily Advisor, the new rule contains two main components.

Under the new rule, there are four clear categories of waters that are considered waters of the United States and, therefore, are jurisdictional under the Clean Water Act (CWA).

  1. Territorial seas and traditional navigable waters.
  2. Tributaries of such waters.
  3. Certain lakes, ponds, and impoundments of jurisdictional waters.
  4. Wetland adjacent to other jurisdictional waters (other than waters that are themselves wetlands).

Notably, the “significant nexus” test is eliminated (as described by Supreme Court Justice, Anthony Kennedy, in the Rapanos Case).  This significant nexus issue is what gave the 2015 WOTUS Rule such widespread authority and, as mentioned, why some states believed any and all water in their state was covered by the 2015 WOTUS definition.

These Are Not Waters of United States

The second main component of the new rule excludes 12 waters/features from jurisdiction under CWA:

  1. Water bodies that are not included in the four WOTUS categories.
  2. Groundwater, including groundwater drained through subsurface drainage systems, such as drains in agricultural lands.
  3. Ephemeral features, including ephemeral streams, swales, gullies, rills, and pools.
  4. Diffuse stormwater runoff and directional sheet flow over upland.
  5. Many farm and roadside ditches.
  6. Prior converted cropland.
  7. Artificially irrigated areas, including fields flooded for agricultural production, that would revert to upland should application of irrigation water to that area cease.
  8. Artificial lakes and ponds, including water storage reservoirs and farm, irrigation, stock watering, and log cleaning ponds, constructed or excavated in upland or in non-jurisdictional waters.
  9. Water-filled depressions constructed or excavated in upland or in non-jurisdictional waters incidental to mining or construction activity.
  10. Stormwater control features excavated or constructed in upland or in non-jurisdictional waters to convey, treat, infiltrate, or store stormwater runoff.
  11. Groundwater recharge, water reuse, and wastewater recycling structures, including detention, retention, and infiltration basins and ponds that are constructed in upland or in  waters.
  12. Waste treatment systems have been excluded from the definition of WOTUS since 1979 and will continue to be excluded under the final rule.

Environmental groups are critical of the exclusion of ephemeral streams as these are dominant water features in states such as Arizona and Nevada.

Next Stop – Litigation?

If you are looking for a reasonably safe bet – it’s this.  This new rule will likely be litigated, possibly all the way to the US Supreme Court (again).  But for now, we have a definition that provides reasonable clarity to our nation’s businesses and private property owners while still providing protection of our nation’s waters as intended under the CWA.

We have significant experience and a long history with WOTUS, including providing technical support on the Rapanos Case.  If you need help with an environmental matter, small or large, we can help.  You can reach me at 248-932-0228, Ext. 125.

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