On Tuesday, Dec 11th, 2018, the Trump Administration unveiled their plan to reduce the reach of federal oversight under the Clean Water Act by redefining which types of water bodies constitute “Waters of the United States” (a.k.a. WOTUS). If adopted, thousands of miles of waterways and wetlands would no longer be subject to federal oversight. The most contentious piece is the proposed removal of “ephemeral” or seasonal waterways from the current definition. One study cited by the Obama Administration estimated ephemeral and intermittent water bodies make up 60% of all waterways in the United States and more than 80% of waterways in the Southwest, of which ephemeral streams are likely the majority.
Remind Me What’s Been Happening with WOTUS…
The Clean Water Act, which was passed in 1972, is still considered one of the country’s most significant pieces of environmental legislation, authorizing the EPA to maintain the “chemical, physical and biological integrity of the Nation’s waters.” It regulates pollution discharge and other development activities that impact “navigable waters,” and which waters qualify is a question that has been hotly debated from the beginning with successive administrations, interest groups and the courts all trying to refine the meaning of the phrase.
The Supreme Court has consistently held that the geographic reach of the CWA can be beyond waters that are “navigable in fact.” In 2015, the Obama Administration tried to clarify and expand the reach of the CWA by issuing the Waters of the United States Rule (WOTUS or Clean Water Rule). His administration argued that because pollution flows downstream, tributaries, headwaters, and wetlands of many kinds should be included under the regulations.
As for ephemeral streams, previous administrations have taken a more inclusive approach than is currently proposed. The Bush Administration believed ephemeral streams should be federally regulated if they had a significant hydrologic or ecological nexus with navigable waters. Obama expanded Bush’s definition by lowering the threshold for a significant nexus determination. Both Bush and Obama included connected wetlands, as well as some wetlands that were not directly connected to navigable waters, in their jurisdictional definitions.
Trump viewed these interpretations as overextensions of Federal power and vowed to change them on the campaign trail. His proposal makes good on that pledge.
The Rationale For Change
The Trump administration’s proposed restrictions of the waters covered under WOTUS are based on the late Supreme Court Justice Antonin Scalia’s 2006 opinion in Rapanos v. United States. In Rapanos, he argued that the CWA should only apply to relatively permanent waters and wetlands with a continuous surface connection to those relatively permanent waters. He believed everything else should be regulated locally.
The Trump administration’s proposal aims to “provide states and landowners the certainty they need to manage their natural resources and grow local economies,” according to EPA’s acting administrator, Andrew Wheeler. Their goal is to allow landowners to know whether water on their property is subject to federal oversight without having to hire consultants or engineers.
Impacts on Land Development
Under the new proposal the following six categories would still be jurisdictional under the CWA:
- Traditional navigable waterways
- Perennial (year-round flow) and intermittent (seasonal flow) tributaries of traditional navigable waterways
- Ditches that function as a traditional navigable waterway or contribute flow to a traditional navigable waterway
- Lakes and ponds that contribute to a traditional navigable waterway
- Impoundments (e.g. dam systems)
- Wetlands adjacent to jurisdictional waters that have a direct surface water connection in a “typical year” (over a rolling 30-year average )
The new rule explicitly excludes any waters that are not covered in one of the six categories above. It also excludes:
- Ephemeral streams (those that flow only after heavy rains, dry washes, arroyos)
- Wetlands that are separated from tributaries by land, dikes, or other features
- Prior converted cropland
- Water control features
- Artificially irrigated areas like fields flooded for cranberry growing
Excluding ephemeral streams and wetlands separated by certain land features is a huge departure from the current regulations. This part of the proposed rule, in our opinion, has the largest impact on Transect users. With these kinds of water bodies making up an estimated 30-40% of all waterways in the U.S., that’s a lot of waters that may no longer be subject to jurisdiction under the Clean Water Act, and, thus, not subject to permitting and mitigation requirements during land development.
What Happens Now?
Once the proposal is printed in the Federal Register, the public will have 60 days to comment. The EPA and the USACE will then have to review the comments before issuing a final rule. After that, it is almost certain that environmental groups concerned about the rule’s impact on safe drinking water and wildlife will challenge the rule in court. Therefore, the administration’s proposal still has a good way to go before it becomes law.
In the meantime, Transect will keep you updated on the progress of this and other changes to environmental regulations that could impact your project and your permitting requirements at the local, state and, federal level. Upload your project today to find out what kinds of waterways and wetlands you need to consider as part of your development plan.