On September 12th, the Environmental Protection Agency (EPA) announced the finalized repeal of the 2015 rule that expanded the definition of “waters of the United States” under the Clean Water Act 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 ones that are connected to a major waterway by surface water.
Opponents of this rule have felt this repeal was long overdue and expect that it will reduce federal permitting requirements for development and industry.
History of the Waters of the U.S. Rule
Since 1972, the Act has 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 have defined and redefined what is regulated by the Act. Previous legal decisions clarified that the 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.
It was in light of this nexus ruling that the 2015 rule was issued, specifying protections to bodies of water that flow into larger bodies of water (e.g., wetlands — including those existing outside of floodplains, headwater streams, and tributaries). The 2015 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 rule resets the regulatory baseline, so the federal rules apply uniformly among all states. The EPA and the Army Corps of Engineers are expected to issue a new regulation by the end of the year that will retain existing federal protections for larger bodies of water, the rivers that drain into them and adjacent wetlands. Streams running only during or after rainfall events (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 that 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 and wetland areas 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 that 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). As has been the case since the Clean Water Act was passed in 1972, the definition of “Waters of the U.S.” and 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.
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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. For more information, please click the link below to fill out our Contact Us form.