The “waters of the United States” (WOTUS) rule has created significant headaches for landowners, developers and contractors. WOTUS defines what waters are subject to federal regulations under the Clean Water Act (CWA). Unfortunately, a patchwork of regulations and court decisions has created significant uncertainty and costs for industries that must comply with these rules. President Obama’s 2015 WOTUS Rule worsened this situation by expanding federal authority over waters to the point that it was reasonable to question if any waters in the United States wouldn’t be subject to federal regulation.
As part of his promise to deregulate, President Trump directed the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) to review and revise the 2015 WOTUS Rule. In doing so, he set forth his administration’s policy that it is in the national interest to ensure, “waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Trump administration issued its proposed replacement rule on Feb. 14, 2019, and is the process of reviewing comments on the rule. This new rule seems to be a step in the right direction to reversing some of the mistakes of the 2015 Rule.
In 1972, Congress enacted the CWA to improve federal protections for the nation’s waters. As part of this law, Congress included regulations to prohibit the discharge of pollutants into “navigable waters” or “waters of the United States,” except in cases where a permit is obtained. Examples of common permits include the Section 402 National Pollutant Discharge Elimination System (NPDES) permits for the point source discharge of pollutants, and Section 404 permits for the discharge of dredged or fill material.
The CWA does not further define what constitutes a WOTUS, and so it has been left up to the EPA and ACOE to develop regulations to determine what waters are subject to the law’s jurisdiction. Traditional Navigable Waters (TNWs) are those that are, were, or could be used for interstate commerce, like oceans and rivers. These are the bodies of water that are commonly thought of when talking about WOTUS.
While the CWA references navigable waters, subsequent regulations and court decisions have recognized that other waters with a connection to these TNWs are eligible for protections. These include tributaries, ponds, lakes, and wetlands that have a connection to a TNW, even though the waters themselves may not be navigable. Much of the controversy and challenges over the past few decades has been about the scope of these waters subject to the law.
In 2015, the Obama administration finalized a new WOTUS rule to replace 1980s-era regulations. This rule set new standards that make it difficult to understand which waters are subject to federal regulation and increased the total number of waters regulated.
The rule created three categories to determine whether a water falls under the jurisdiction of the CWA. The first category is waters that are jurisdictional “by rule,” meaning that they are regulated because they possess certain features. The second category is waters that are jurisdictional on a case-by-case basis depending on whether or not the water has a “significant nexus” with another jurisdictional water. The third category is waters or water features that are excluded from regulation.
While there are numerous issues with this rule, some of the most problematic include:
- A significant expansion of federal authority over wetlands, ponds, lakes, and other waters with a very tenuous connection to other regulated waters.
- The expansion of the rule to apply to “ephemeral” water features, or those that only exist during or in response to precipitation.
- The case-by-case “significant nexus” analysis required for some determinations. To establish a significant nexus, the ACOE would have to examine nine functions to determine whether a water feature falls under federal regulation. Furthermore, this test could apply to waters that are as far as 4,000 ft away from the high tide line or ordinary high water mark of another jurisdictional water, which significantly expands federal jurisdiction.
Taken together, these and other aspects of the 2015 Rule have made it difficult for property owners and those managing projects to determine whether they will need a permit, and if they do, potentially increases the time it takes to get one.
As a result of court challenges, the 2015 Rule is currently in effect in 22 states, the District of Columbia, and the U.S. territories, with the previous 1980s-era regulations in effect in the remaining 28 states.
Trump Administration’s Proposed Rule
The Trump administration’s new rule is designed to strike the proper balance between federal and state regulation of waters and to provide “bright line” definitions so that jurisdictional waters can more easily be easily identified. It would do away with the three category system and significant nexus test of the 2015 rule; instead, waters would either be subject to the new rule or they would be exempt.
The new rule would create six categories of waters that would be subject to WOTUS. They are:
- traditional navigable waters;
- tributaries that flow into traditional navigable waters;
- certain ditches that satisfy the condition of a tributary and have a direct connection with another regulated water;
- lakes and ponds that meet the definition of a TNW or contribute perennial or intermittent flow to a TNW;
- impoundments of jurisdictional waters (including canals)
- adjacent wetlands, meaning wetlands that physically touch another jurisdictional water or have a direct surface connection with a jurisdictional water. This wetland definition reins in the more expansive 2015 definition.
Just as importantly, the new rule would also exempt certain types of waters. These include ephemeral features, stormwater control features, and waste treatment systems.
Overall, this new rule would help to limit the total number of waters subject to federal regulation while still allowing states to exercise their authority to protect waters and the environment. It seems to be a step in the right direction and will help to provide greater clarity when determining whether a water is subject to federal regulation, and help to limit increased costs and delays for projects.
NUCA has submitted comments to the agencies on its proposed rule, and will continue to monitor this process for any impacts that it may have on the utility construction industry.
Bryce Mongeon is Director of Government Relations for the National Utility Contractors Association (NUCA).