Why the Waters of the United States Proposed Rule Matters

The definition and application of “Waters of the United States” (WOTUS) under the Federal Water Pollution Control Act (Clean Water Act or CWA), 33 U.S.C. 1251 et seq., has a meandering history, and the next bend is now unfolding. 

WOTUS is a fundamental definition for the CWA affecting the scope of jurisdiction in many programs, including permitting and water quality. Changes to the WOTUS definition will affect these programs and may impact your property, operations and activities.

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army Corps of Engineers (USACE) prepared a proposed rule (2021 Proposed Rule), published in the Federal Register on Dec. 7, to re-establish the pre-2015 definition of  WOTUS, updated to reflect relevant Supreme Court decisions.  The agencies have proposed changes to the definition and requested comments. 

The public is invited to participate via virtual public hearings on Jan. 12, Jan. 13 and Jan. 18. In addition, written comments can be submitted until Feb. 7. Speakers for the public hearings need to pre-register, and the agenda with speakers noted will be published the day prior to each public hearing. By participating, you may influence what becomes the final rule. 

Why WOTUS Matters

The definition of WOTUS is important in many CWA programs, including:

  • Water quality standards (§ 303(c)),
  • Impaired waters and total maximum daily loads (§ 303(d)),
  • Oil spill prevention, preparedness and response plans (§ 311),
  • State and tribal water quality certification programs (§ 401),
  • National Pollutant Discharge Elimination System programs (§ 402), and
  • Dredge and fill programs (§ 404),

because such programs apply only to WOTUS. If  your operations or activities are subject to any of these programs, changes to WOTUS could affect you. 

EPA has asserted that climate change and environmental justice are important factors to consider in regulating WOTUS, and these factors are an essential part of the 2021 Proposed Rule. Climate change and environmental justice considerations are occurring in some programs already, such as those dealing with permitting, compliance and enforcement. Inclusion in the 2021 Proposed Rule may have additional consequences affecting one’s activities in the environmental arena.    

Some stakeholders are interested in ensuring the retention of existing exclusions, such as the waste treatment system and prior converted cropland exclusions, while others seek additional exclusions, including for stormwater control features and artificial lakes and ponds.

The 2021 Proposed Rule also addresses the role of the federal agencies as opposed to states and tribes and, thus, revisions to WOTUS will affect those involved with managing and protecting the nation’s waters.

If you have a permit, may seek a wetlands delineation, are located in an area deemed disproportionately impacted by climate change or environmental justice,  are a tribe with WOTUS management concerns, are a municipality seeking to use property for certain purposes, have ditches or similar features on your property, or for many other reasons, the 2021 Proposed Rule and, eventually, the revised definition and implementation of WOTUS matters.     

Why Participate in the 2021 Proposed Rule Process

A Seat at the Table

By participating in the 2021 Proposed Rule, you can seek to “have a seat at the table” and influence the final rule in a beneficial way. In addition, the 2021 Proposed Rule is step one in a two-step process. EPA has stated that the agencies also will pursue a second rulemaking process to further refine and build upon the current WOTUS rulemaking. Thus, participation in the 2021 Proposed Rule may influence not only this rulemaking but also the second related WOTUS rulemaking.

Some key topics and agency requests for comments in the 2021 Proposed Rule are provided below Please note that a more extensive review of the history of WOTUS and the 2021 Proposed Rule can be found here.

Business Considerations

Businesses may be concerned with how the definition of WOTUS could affect features on the property where their operations are located, such as lagoons, ponds, ornamental bodies of water, wetlands,  and ditches. In addition, the scope of the waste treatment system exclusion can be important for some operations.

Businesses considering construction on their property also may be impacted, as was the situation in United States v. Riverside Bayview Homes, which involved  the defendant placing fill materials on its property in preparation for constructing a housing development. Finally, the inclusion of new factors, such as climate change and environmental justice, and potential impact on permitting and ongoing compliance, are emerging considerations. 

Impact on Individuals

The definition of WOTUS may impact the property of individuals, such as wetlands delineation and permitting related to development and construction activities.  In another significant Supreme Court case Rapanos et al v. United States, property owners placed fill into wetlands without obtaining a permit or sought but were denied a permit.   

Importance to Tribes and Municipalities

During tribal consultations for the forthcoming 2021 Proposed Rule, numerous tribes stressed the importance of a meaningful consultation process and the significance the definition and implementation of WOTUS will have on tribes. The agencies have indicated they are interested in continuing consultations on the proposed rulemaking. Continued participation in the 2021 Proposed Rule can be key to obtaining desired outcomes. 

Municipalities also can be impacted, as was the situation in a third noteworthy Supreme Court case, Solid Waste Agency of Northern Cook County v. USACE (SWANCC). In SWANCC, a group of suburban Chicago municipalities selected as a solid waste disposal site an abandoned sand and gravel pit with excavation trenches that had evolved into permanent and seasonal ponds, and were denied a permit to fill in some of the ponds.

Request for Comments

The agencies have requested comments on a broad array of subjects. Some that may be of particular interest include:

  • Waste Treatment Systems: The agencies for decades have not limited the exclusion to manmade bodies of water, despite suspended language providing otherwise. The agencies seek comment on their proposal to delete the suspended sentence in the exclusion. This proposed revision is beneficial to businesses with such systems.
  • Exclusions: Other than the waste treatment system and prior converted cropland exclusions, the agencies propose not to codify any list of exclusions but, rather, rely on implementing the proposed rule consistent with longstanding practice. The agencies are seeking comment on this approach to codifying and implementing exclusions.  In general, for the regulated community, codifying exclusions may provide more certainty and agency consistency, so a codified list may be beneficial.
  • Other Waters: The WOTUS definition includes examples of “other waters.” The agencies are seeking comment on whether to delete the list of water types and state that the “other waters” category includes all other intrastate waters (including wetlands) that meet either the relatively permanent standard or the significant nexus standard. The agencies also request comment on whether to add or delete any particular water types. As with the exclusions discussion, expressly stating the “other waters” may provide more clarity and consistency.
  • Ditches: Certain ditches are considered jurisdictional. The agencies are seeking comment on how to interpret relevant reach for ditches and whether to consider any particular factors for specified situations. If one has ditches on their property, further examination may be warranted.
  • Wetlands: The agencies seek comment on whether to provide guidance on when features, such as ditches and pipes, can be a physical connection that maintains a continuous surface connection between a wetland and a relatively permanent water. This may be significant for those properties potentially impacted by wetlands. 

In summary, the definition of WOTUS has been controversial for decades. A revised definition can have important consequences for businesses, individuals, tribes and municipalities. If you may be impacted by the WOTUS rulemaking,  providing your input in the upcoming public hearings and/or through written comments may be in order. 

In any event, it will be meaningful to track the 2021 Proposed Rule as well as the upcoming second rulemaking aimed at further refining WOTUS and, ultimately, understand the eventual WOTUS final rules (and the litigation likely to follow) to ensure you understand how the changes impact your property, operations and activities.

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