There is no disputing that the protection of sources of drinking water and high-quality wetlands are important. But as the debate on Waters of the United States (WOTUS) continues, we must determine what water bodies are subject to federal jurisdiction.
Why does this matter? If you are planning a development or clean energy project that may affect a stream or wetland, you will need to know how the current definition of WOTUS affects your project and whether you will need a permit. Unfortunately, however, that definition is not clear and recent U.S. Supreme Court decisions have only muddied the water.
The Clean Water Act (CWA) is the foundational law that governs the nation’s waters. Any discharge of a pollutant from a point source, such as a pipe, or construction or farming activities, impacting waters subject to federal jurisdiction require a federal permit. Importantly, waters not subject to federal jurisdiction are still subject to state law and permitting requirements. Securing federal permits for projects, including clean energy infrastructure, can take months or years to secure and at significant cost. Failure to obtain a permit can result in significant civil and criminal penalties.
What Did Congress Intend?
When enacting the CWA, Congress made clear that certain waters remained subject to state jurisdiction and beyond federal reach. However, for those waters deemed WOTUS, the CWA prohibits an unpermitted discharge of pollutants into navigable waters, i.e., those waters that can “float a boat” or support commercial activities. Conservative jurists argue Congress limited the CWA’s reach to only those waters that support commerce, while others argue that such interpretation is too narrow.
In a divided 4-1-4 decision, the Supreme Court in the 2006 Rapanos case opined that waters with a “significant nexus” to traditional navigable waters fall within the definition of WOTUS. With no clear definition or guidance on the level of significance required, federal courts continue to be split, resulting in federal jurisdiction being extended to many non-navigable waters with little, if any, connection to traditional navigation and commerce.
During the Obama administration, the definition of “navigable waters” was expanded under the Clean Water Rule so that any flow of water that feeds into any navigable water was subject to federal jurisdiction – one of the most expansive interpretations in history. That definition was relatively short- lived when the Trump administration curtailed the scope of federal jurisdiction under the 2020 Navigable Waters Protection rule. These changes upheld the protection of many categories of waters but effectively scaled back the range of protections for geographically isolated wetlands and small, ephemeral streams with seasonal flows.
In August, a federal district court in Arizona struck down the Trump-era Navigable Waters Protection rule, perpetuating the uncertainty around the scope of the CWA and the future of WOTUS definitions. Currently, whether the court’s action applies nationwide or only to the state of Arizona is unclear. Numerous projects that kick-started under the Navigable Waters Protection rule could also be in limbo because of the reversal. The district court ruling means EPA and the Army Corps of Engineers revert to implementing a 1986 regulation as interpreted by the 2008 guidance written by the George W. Bush administration to determine what qualifies for federal protection. Litigation on this matter will continue, further adding to the confusion regarding which interpretation of current law is correct and underlying the need for action on a refined definition.
The Need for Regulatory Certainty
For nearly three decades the scope of federal jurisdiction has changed with each new administration, with Republicans seeking to contain federal reach and Democrats seeking to expand it. This whiplash is particularly hard on landowners, industry and farmers who depend upon regulatory certainty.
The effects are real – communities in need of new bridges, roads and highways, airports, clean energy, and water and wastewater plants will be further delayed. This hampers transit, commerce, and prolongs the public’s exposure to the environmental, health, and safety hazards posed by aging infrastructure.
What is missing from the debate is the recognition that while a connection between most waters and commerce can be made, not all waters are equal in their economic and ecological value. While some waters are indispensable to navigation and commercial activities, others have little, if any, connection. As one paddles farther up any watershed, the connection with navigation and commerce diminishes. However, these headwaters provide many ecosystem services, including filtering out pollutants, supporting recreation, wildlife, and fish habitat, providing groundwater recharge, and drinking water sources.
Sadly, Congress could put this confusion to rest by clarifying the CWA definition, but it has failed to do so and soon we will get yet another definition, as the Biden administration has announced its intent to formulate a new rule. As the administration goes through a new WOTUS rulemaking process, it is imperative that the EPA and the Army Corps of Engineers make a good-faith effort to strike a balance, faithfully interpret the law, and create greater clarity.
There is a need for a reasonable, clear, and justifiable definition of what waters fall under federal jurisdiction. Equally important is the need to balance the protection of our nation’s water resources with the need for a clear and predictable permitting process that makes it possible for rebuilding our nation’s infrastructure and economic growth.
Ultimately, the EPA and the Army Corps of Engineers should create clear and understandable guidance that provides regulatory certainty, without unnecessary overreach.
Americans, regardless of their political views, care about clean and safe water and the protection of our rivers and streams. We at ConservAmerica believe that a reasonable middle-ground can be achieved that balances the protection of our nation’s waters while reducing confusion and burdensome impact on industry, agriculture, and landowners.