On January 23, the Trump Administration issued its final Waters of the United States (WOTUS) rules. These new rules, which replace the 2015 Obama Administration rules, are designed to clarify federal control over the nation’s aquatic system. The rules take effect 60 days after Federal Register publication, most likely in late March or early April.
While the new rules provide more clarity than last year’s proposal, they still leave significant room for interpretation. Specifically, landowners should be cautious in presuming that the rule will provide an easier path to obtain permits.
Issued by EPA and the Army Corps of Engineers, the new rules limit federal control to only wetlands and tributaries that directly connect to flowing streams and rivers only by perennial or intermitted surface flow. This rule is a dramatic reversal of the Obama Administration’s 2015 WOTUS rules, which based federal jurisdiction on finding an ecological connection to streams. Those rules reflected Justice Kennedy’s “significant nexus” opinion in the 2006 Rapanos case.
The new rules largely implement Justice Antonin Scalia’s Rapanos opinion based on hydrology and not ecology. The new rules make key changes to the 2015 rules, including dropping the “significant nexus” standard by regulating only those waters and wetlands that are connected hydrologically by surface flow to streams and rivers. Only 4 categories of “waters” are regulated:
Traditionally Navigable Waters (TNWs) such as the Mississippi River:
Tributaries to those waters that contribute perennial or intermittent flow to navigable waters;
Lakes, ponds and impoundments; and
Adjacent wetlands that are connected to tributaries and TNWs by surface flow.
The new WOTUS rules also exclude:
Isolated lakes, ponds and wetlands;
Ephemeral features;
Storm water runoff;
Most ditches;
Prior Converted Cropland:
Groundwater:
Excavated pits and depressions incidental to mining or construction;
Storm water control features; and
waste treatment systems.
While these new rules go a long way in clarifying federally regulated waters, landowners should not assume that the permit process will be any easier. In many cases, it may be hard to determine whether a water feature that only flows intermittently is a covered tributary or an excluded ditch or ephemeral pond, especially in the normally arid West.
The rules rely on flow data from a typical year defined as a rolling 30 year average and suggest several tools such as aerial photography or GPS data that can be used. There will still be significant room for interpretation and Corps regulators may be reluctant to exclude certain aquatic features that have been historically regulated. It may also be hard to identify “adjacent wetlands” that may only be indirectly connected by seasonal flow to a tributary.
Further, in many cases, the mitigation burden may not change much because the Corps’ mitigation rule is based on a holistic watershed analysis. Also, many state wetlands programs regulate waters that are excluded under this proposal and have their own regulatory and mitigation requirements.
Importantly, landowners are still subject to the Endangered Species Act for excluded waters that are habitat for federally listed species. They also may have to obtain separate permits from the U.S. Fish and Wildlife Service.
As discussed previously in the Dawson & Associates’ blog, WOTUS litigation has exploded in recent years as environmental groups, state and local governments and industry have fought over the extent of federal control. In December, the Trump Administration issued a final rule repealing the Obama Rule. This new rule had already taken effect in 22 states and the District of Columbia but was barred in 28 states – a chaotic situation making it difficult for landowners to know whether they need to obtain federal Clean Water Act permits for such actions as energy development and homebuilding. That “repeal” rule has already been challenged in court by a coalition of states and several environmental groups and these same groups are likely to challenge this newest rule.
Finally, litigation could impact the rule’s effectiveness as the challenges wind through the courts, likely landing at the Supreme Court.
Stay tuned.
Larry Liebesman, Esq.
Senior Advisor
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.