EPA Officials to Change Waters Protected by the Clean Water Act

The definition of waters of the U.S (WOTUS) is changing again, and maybe the fourth time's the charm?

Biden to Change Water Protection Standards

On January 21, 2021, President Biden signed Executive Order 13990, which directed the federal agencies, the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE), to review all federal regulations passed during the previous administration. This review followed his national environmental, public health, and safety goals. A key focus of this review was the definition of "waters of the United States" (WOTUS), which are waterways and wetlands that meet specific requirements to warrant protection under the Clean Water Act.

The Biden administration is not the first to challenge the historical interpretation of which waterways are covered by the Clean Water Act. Let's review, shall we?

History of Changes to the Clean Water Act Protections

Regulations defining WOTUS were established with the passing of the Clean Water Act in 1972 and would not change for the next 40 years. This act is the environmental law that sets water quality standards and federal jurisdiction for the United States’ waters and regulates the discharge of pollutants into these waters. Several Supreme Court cases attempted to offer clarity to the definition of WOTUS, though there was still ambiguity. Many bodies of water remained unregulated.

Clean Water Act Rule

In 2015, the Obama administration established the Clean Water Rule, which granted absolute protection for bodies of water that had not historically received Clean Water Act protections. The rule did not change the definition of WOTUS; instead, it reduced the number of "case by case" WOTUS determinations by categorically determining certain water bodies as WOTUS. The rule also expanded the definition of "adjacent" waters, looping in many previously isolated water bodies as WOTUS. A noticeable water body inclusion by this rule was protection for ephemeral streams. Many of these waters make up part of the water supply for vegetation and communities in arid regions. If not properly managed, they can carry toxic pollutants into larger downstream waters. Due to this, environmentalists applauded the inclusion of this natural resource when Obama established new water pollution rules and water quality standards.

Navigable Waters Protection Rule

In early 2020, in response to Obama's Clean Water Rule, the Trump administration passed the Navigable Waters Protection Rule (NWPA), which, for the first time in history, excluded ephemeral streams from the definition of WOTUS and, therefore, protection under the Clean Water Act. These streams contribute to overall water quality, impact further downstream waters, and are a vital surface water source for many regions. This rule particularly affected arid states like New Mexico and Arizona, where the 25 percentage point reduction in clean water act protections for their waters left almost 1,500 streams unprotected. This rule primarily focused on protecting waterways deemed traditional navigable waters and lacked protection for many other water features. This ruling was met with backlash from environmentalists who feared this oversight would result in pollutant discharge into unprotected, valuable water sources.

What Does the WOTUS Definition Change Mean for Land Developers?

The change in definition for the waters of the U.S. could leave some developers in hot water on their project sites. Waters once unprotected by the federal government may be considered protected under the to-be-defined WOTUS, leading to additional requirements and project changes. As seen prior, a permit required under one administration may not be required under another. This change can confuse developers and lead to extra kinks in the project development process.

Additionally, states create their own regulations such as the California Water Code and host local regulatory agencies, such as the Flordia Department of Environmental Protection. The change in WOTUS could drive states to add or remove regulations for waters within their respective state as their interest sees fit. Ultimately, the changing of the defined WOTUS could flood the land development industry with confusion.

Upcoming Changes to Waters of the United States

So here we are, back to the Biden administration. Earlier this month, the USACE announced a revised rule making that will include the following:

1. A foundational rule to restore longstanding protections that were in place before 2015 and,

2. A second rule to further refine and build upon the regulatory foundation. The proposed rule states that the administration intends to learn from the past regulatory approaches while working with stakeholders and creating a refined definition of ''waters of the United States.''

Maybe the Biden administration can finally craft a waters protection rule that adequately protects our nation's waters within the intent of the original Clean Water Act. While appeasing the various public and private stakeholders will be difficult for the administration. However, when considering the crucial role of an abundant clean water supply as our world fights the effects of an ever-warming climate, it is more important than ever to get this rule right.

USACE and EPA officials will be holding a public hearing during web conferences throughout August 2021 to redefine WOTUS. Additional discussions may occur in September 2021 if needed. This process will hear input from Tribal, local, and federal agencies. General feedback via open docket or participation is welcomed to aid the rulemaking process. To submit feedback, visit the EPA website. Participation at the meetings will be on a first-come, first-serve basis.

2022 UPDATE: Changes to the WOTUS Definition:

On December 7, 2021, a ruling proposed by the environmental protection Agency and United States Army Corps of Engineers to temporarily redefine WOTUS was published in the Federal Register. This ruling returns the definition to a pre-2015 ruling.

Current Waters Under Federal Jurisdiction

Waters protected under this definition are to include:

• All waters presently used, used in the past, or might be susceptible to use in interstate or foreign commerce, including traditional navigable water

• Territorial sea

• The harm to waters such as intrastate lakes, streams, and rivers could impact interstate or foreign commerce

• Tributaries that flow into navigable water. Features such as ephemeral streams can receive this protection if they have a "significant nexus"

• Interstate waters, regardless of navigability, including an interstate wetland

• Wetlands adjacent to waters that contribute to surface water flow (other than waters that are themselves a wetland)

On February 24, 2022, the EPA and USACE selected ten roundtables to help establish the new WOTUS ruling. These roundtables represent the geographic differences and varying interests in protecting these natural resources. These differences include individuals in positions such as drinking water and wastewater managers, Tribal leaders, and conservation group members.