The Environmental Protection Agency (EPA) announced September 12 the finalized repeal of the 2015 Clean Water Act rule which expanded the definition of Waters of the United States (WOTUS) and limited pollution into surface waters of the U.S. through regulations and permitting. The EPA rule is now expected to cover fewer waterways and narrow existing protections, covering only wetlands adjacent to a major body of water, or bodies connected to a major waterway by surface water.
Opponents of this rule have felt this repeal was long overdue and expect it will reduce federal permitting requirements for development and industry.
History of the WOTUS Rule
Since 1972, the Clean Water Act regulated pollutant discharge to surface waters by requiring permitting and regulatory conditions for any industrial polluter, as well as discharges from rural and agricultural landowners and real estate developers. The applicability of the Clean Water Act has been controversial, arguably since its conception, and various regulations and litigation has defined and redefined what is regulated by the act. Previous legal decisions clarified the Clean Water Act applied to wetlands as well as navigable waters and tributaries. A subsequent Supreme Court decision found that isolated wetlands, without a surface water connection to a tributary or navigable water, were not regulated under the act. Another Supreme Court decision determined that a “significant nexus” to navigable waters must be demonstrated for wetlands and streams to be regulated.
As a result of the nexus ruling, the 2015 WOTUS rule was issued which specified protections to bodies of water that flow into larger bodies of water, whether they were wetlands, headwater streams, and tributaries — including wetlands which exist outside of floodplains. The 2015 WOTUS rule was immediately challenged in court and, at the time of its repeal, was applicable in about half of the states and struck down or halted in the remainder of the states.
Regulatory Expectations for Waters
The repeal of the 2015 WOTUS rule resets the regulatory baseline, so federal rules apply uniformly across all states. The EPA and the Army Corps of Engineers are expected to issue a new regulation by the end of the year which will retain existing federal protections for larger bodies of water, the rivers that drain into larger bodies of water and adjacent wetlands. Streams that only run during or after rainfalls (ephemeral and headwaters streams) and wetlands not adjacent to major bodies of water are expected to have their federal protections removed. The rule is also expected to remove the “significant nexus” test.
Some fear this repeal will negatively impact fish and wildlife habitats, particularly those of endangered species and their endangered status. For fisheries, the sustainability of fish stocks and habitat health is uncertain. The waterways that are no longer protected also act as drainages for flood events and remove pollutants carried by stormwater from roads, industrial sites, agricultural land and more developed areas. Compromising the biological integrity of these waters can increase the environmental and financial risks of flooding and storm damage.
The new rule will almost certainly be met with legal challenges which may result in an uneven patchwork of applicability across the country. No changes are anticipated to stormwater management or rules affecting groundwater (although a case being argued before the Supreme Court this fall may affect groundwater). Since the Clean Water Act was passed in 1972, the definition of “Waters of the U.S.” and its regulatory implications will continue to evolve. While the upcoming rule may limit the scope of regulations, it will not remove the need for scientifically-based determinations of streams and wetlands prior to development.
Braun Intertec provides professional consulting services to help clients track and comply with federal and state water regulations. We assist clients with wetland delineations, obtaining jurisdictional determinations, wetland or Waters of the U.S. permits, and stormwater compliance across the country. To learn more about the latest federal environmental regulatory changes check out our latest on-demand webinar.
For more information about compliance with federal and state water regulations please contact Daniel DeJoode Ph.D.