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Muddy Waters For Clean Water Act Permitting

The Clean Water Act (the CWA), as reorganized and expanded in 1972, regulates the discharge of pollutants in the waters of the United States and sets quality standards for surface waters. Under the CWA, it is unlawful to discharge any pollutant from a point source into navigable waters of the United States, without a permit.  Over the years, the definition and scope of the terms “navigable” and “waters of the United States” have been actively challenged and litigated.

A Brief Backstory

For decades, Congress and various administrations were unsuccessful in clarifying the key question of exactly which waters are included under the CWA. In 2015, the Obama Administration tried to resolve this controversy once and for all by issuing the Waters of the United States Rule (WOTUS or Clean Water Rule). The WOTUS rule expanded the EPA’s authority to include water bodies such as upstream waters and intermittent streams. Supporters applauded the EPA for taking steps to protect the drinking water supply of more than a 100 million Americans.  Critics say the Clean Water Rule reaches too far, giving the Agency authority over every puddle and ditch in the Nation.

WOTUS-Go-Round

Currently, the Clean Water Rule is in a state of rapid flux.  On February 28, 2017, President Trump issued Executive Order 13778 directing the EPA and the USACE to review and rescind or revise the 2015 Rule.  An initial issue concerned which federal court had jurisdiction to hear challenges to the Rule. In January 2018, the United States Supreme Court held that challenges to the 2015 Rule must first be filed in federal district court, not the courts of appeal.

Right after the Supreme Court decision, the EPA filed paperwork to suspend the rule for two years so it would not be implemented in a piecemeal fashion.  Lawsuits challenging the suspension of the Rule have been filed in multiple jurisdictions, with different outcomes.  As of today, about half of the country must follow the 2015 Waters of the U.S. rule (WOTUS), while the other half does not. However, the situation continues to change rapidly, with the American Farm Bureau and other industry groups asking the federal district court in South Carolina to stay its order. In a separate filing, the same coalition notified a federal district court in Texas of the ruling by the court in South Carolina, urging that court to issue a nationwide injunction against the 2015 WOTUS Rule.

How does this affect your project?

The regulated community is frustrated with the changing and inconsistent legislative environment.  As of the date of this publication, the 2015 Clean Water Rule is in effect in 26 states, including California, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington.

However, the situation is constantly evolving. Permit applicants must work with the Agency and their own legal counsel to be certain to be up to date on the WOTUS rule in effect in their state and what it might mean for future liability and potential litigation.