Waters of the United States Rule Still Generating Questions

Challenges to the New Rule Have Already Been Filed by Non-Governmental Groups, Keeping the Regulatory Waters Turbulent.

In April, the Trump administration took the second of a two-step act to un-muddy the waters with a new rule defining the scope and reach of “Waters of the United States” (WOTUS). This act reversed the course set by the Obama administration in 2015, a rule that lent itself to justifying the regulation of WOTUS areas far beyond the banks and boundaries of cognizable water bodies.

Challenges to the new rule have already been filed by non-governmental groups, keeping the regulatory waters turbulent; but if the new rule is not stayed, its measured approach should provide greater clarity about the activities that require permitting for wastewater and stormwater discharges.

Generally, the Clean Water Act (CWA) governs discharges to “navigable water” which is defined in section 1362(7) as the “WOTUS.” The CWA expressly prohibits the discharge of pollutants to navigable waters without a permit.

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have authority to issue such permits. Knowing whether a permit is required hinges on understanding which waterways fall under this definition, but agency rules, guidance, older case law, and a bevy of legal challenges to the Obama era rule created uncertainty, significant confusion and inconsistency from one state to another.

The April 21, 2020, Navigable Waters Protection Rule (85 FR 22252) redefining which streams and wetlands are within the definition of WOTUS dispels the confusion and sets a uniform standard for the entire country. This new rule makes is much easier to determine when a permit will be required for wastewater and stormwater discharges.

A Quick History

The CWA was passed in 1972, but the first regulatory definition of WOTUS was not promulgated until the 1980s. The agencies’ interpretations have broadened over time, but the Supreme Court has pushed back – in 2001 and again in 2006.

The Obama administration’s 2015 “Clean Water Rule” (80 FR 37054) redefined (and greatly expanded) the scope of CWA jurisdictional waters. The rule was challenged in federal court and a stay prevented the rule from going into effect in 22 states. In 2018, the Trump administration attempted to stay the Clean Water Rule’s effective date with its “Suspension Rule” but it was vacated in district court.

The Trump administration then proposed a two-step approach and a much more thoughtfully developed plan, which was published as “Step I” on Oct. 22, 2019, (84 FR 56626). Step I repealed the Clean Water Rule and restored the regulatory definition promulgated in the 1980s. Part I has also been challenged in federal court but has not been stayed. Thus, currently, the pre-2015 WOTUS definition is effective nationwide.

The New Definition

The Navigable Waters Protection Rule (85 FR 22252) redefines WOTUS, and goes into effect on June 22, 2020. This rule includes four main categories of WOTUS:

  • Territorial seas and traditional navigable waters.
  • Perennial and intermittent tributaries that contribute surface flow to the above waters.
  • Certain lakes, ponds, and impoundments of the above waters.
  • Wetlands adjacent to jurisdictional waters.

These categories align with those in the pre-2015 WOTUS definition. So, too, do the express exclusions – i.e., non-jurisdictional waters; ephemeral features flowing only in direct response to precipitation; prior converted cropland; certain ditches and artificial features; and waste treatment systems.

The key differences are removal of the regulatory definition for “adjacent,” the express exclusion of groundwater, and the amount of flow that is required to constitute a jurisdictional water body. To establish whether a tributary contributes sufficient flow to a traditional navigable water, the agency will use a “typical year.” These tributaries must flow year-round or consistently during certain parts of the year, based on a 30-year rolling average.

The Inevitable Litigation

However, the new rule does not mark the end of the discussion. In keeping with tradition, this rule has already been challenged. If history repeats and stays are issued in certain states and not others, then as it stands now, certain states will be under the pre-2015 rule and others will be under the Navigable Waters Protection Rule. And if a stay issues regarding Step I, some states may be under the pre-2015 rule, others under the Clean Water Rule, and yet others would be under the Navigable Waters Protection Rule.

Not to be outdone, the Supreme Court also chimed in on WOTUS issues in April. On April 23rd the Supreme Court held that a permit could be required for discharges to groundwater where they are the “functional equivalent” of a direct discharge to a navigable water from a point source. Cty. of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, 2020 WL 1941966 (Apr. 23, 2020).

Although not all discharges will require a permit, the Court set out factors to determine when discharging to groundwater is essentially the same as discharging directly into a WOTUS. To be clear, the Court did not hold that groundwater is itself a WOTUS; therefore, this ruling does not directly conflict with the Navigable Waters Rule.

However, the Court’s opinion is at odds with EPA’s 2019 “interpretive statement” which expressly excluded discharges to groundwater from the CWA’s permitting requirements. The County of Maui case, which was issued just two days after the publication of the Navigable Waters Protection Rule, will likely prompt additional agency action to clarify which discharges to groundwater meet the Supreme Court’s factors and require a permit under the CWA.

The Upshot

The Navigable Waters Protection Rule is final and, barring a stay, will take effect June 22, 2020. However, as explained above, litigation will likely continue to muddy the waters for years to come.

The regulation of discharges through groundwater will also present compliance challenges. And while it is unclear if a step backwards will follow the Step II rule, the agencies are at least moving in the right direction.

Daniel A. Fanning is an associate in the St. Louis – Cortex office of Husch Blackwell. After two years assisting and regulating various industries, Fanning applies his prior experience as a wastewater pretreatment coordinator to assisting clients with environmental issues. He can be reached at [email protected].

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