By Don Snemis and Amy Berg, both of Ice Miller LLP
On January 23, 2020, U.S. EPA and U.S. Army Corps of Engineers finalized the 2020 Navigable Waters Protection Rule. The 2020 Rule redefines the scope of waters subject to federal regulation under the Clean Water Act. The Rule replaces the 2015 WOTUS Rule and is intended to provide predictability and consistency in evaluating whether water bodies are subject to federal regulation.
The scope of waters subject to regulation under the CWA has been unclear and contentious since its enactment. The CWA generally prohibits discharges of pollutants into "navigable waters" from a point source. "Navigable waters" means the "waters of the United States, including the territorial seas." However, the CWA does not further define the term "waters of the United States” (WOTUS). Several key U.S. Supreme Court cases have considered the scope of WOTUS, most notably Rapanos v. United States, 547 US 715 (2006).
The 2015 WOTUS Rule was published citing the "significant nexus standard" established by Justice Kennedy’s concurrence in Rapanos. Many considered the 2015 WOTUS Rule to be an overreach of the EPA’s jurisdiction, while others argued that it excluded too many waters. The 2015 WOTUS Rule was challenged by numerous states and other parties, and was never fully implemented. Much of the debate focused on whether tributaries and waters adjacent to traditional navigable waters were WOTUS.
The 2020 Rule provides that WOTUS means: (1) territorial seas and navigable waters, (2) tributaries, (3) lakes and ponds, and impoundments of jurisdictional waters, and (4) adjacent wetlands. The 2020 Rule excludes certain waters from the definition of WOTUS, including: (1) waters or water features that are not jurisdictional waters; (2) groundwater; (3) ephemeral features; (4) diffuse stormwater run-off and sheet flow; (5) ditches that are not territorial seas or tributaries, and portions of ditches constructed in adjacent wetlands that do not satisfy the definition of adjacent wetlands; (6) prior converted cropland; (7) artificially irrigated areas; (8) artificial lakes and ponds; (9) certain water-filled depressions and pits; (10) stormwater control features; (11) groundwater recharge, water reuse, and wastewater recycling structures; and (12) waste treatment systems. Additionally, the 2020 WOTUS Rule defines key terms such as “adjacent wetlands,” “ditch,” “ephemeral,” and “intermittent.”
Key changes in the 2020 Rule are the exclusion of ephemeral streams and wetlands that are not adjacent to traditional jurisdictional waters. As has always been the case, responsibility for regulating waters that are not WOTUS is the responsibility of the states and tribes.
Environmental groups have already pledged to challenge the 2020 Rule and certain states are considering similar actions. Uncertainty over the scope of WOTUS is likely to continue.
A case to watch in the coming months is Hawaii Wildlife Fund v. County of Maui, which involves a municipal wastewater treatment facility. The U.S. Supreme Court heard oral arguments in this case on November 6, 2019. This case involves treated municipal wastewater that is injected into groundwater and ultimately discharged into the Pacific Ocean through groundwater. The question being considered by the Court is whether an NPDES permit is required when pollutants are discharged from a point source but are conveyed to navigable waters by a nonpoint source (in this case groundwater). The outcome of the Maui case could have wide implications with regard to the definition of WOTUS and the scope of the CWA.
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