In April, the EPA and the Corps of Engineers jointly put out a draft rule under the Clean Water Act. The rule addresses exactly what is meant by “waters of the United States,” or WOTUS. Regulatory confusion arose from two Supreme Court decisions in 2001 (SWNCC) and 2006 (Rapanos), which attempted to clarify definitions but resulted in even more uncertainty. Multiple opinions were issued by multiple Supreme Court Justices in the Rapanos case, each overlapping and slightly contradictory. Regulatory agencies tried to incorporate all these viewpoints, and the situation became muddy.
Read the rule but be warned that while the rule is only two pages, the preamble is 88. Comment period has been extended to October 20. The rule will not be finalized until the Science Advisory Board has finished a thorough review.
The word “navigable” is no longer used in the WOTUS definition. The new rule, for the first time, provides a definition of a tributary as “a water physically characterized by the presence of a bed and banks and ordinary high water mark, as defined at 33 CFR 328.3(e), which contributes flow, either directly or through another water” to a water of the United States. But it includes ditches and canals. SRP canals are classified as WOTUS and the CAP canal likewise can be considered WOTUS, or so Central Arizona Water Conservation District has indicated in a comment letter requesting a special exemption. Definitions are also provided for “adjacent” and “neighboring” waters, riparian areas, wetlands and floodplains. “Significant nexus” also receives a formal definition, meaning a water body that “significantly affects the chemical, physical, or biological integrity of a WOTUS.” Chemical, physical, or biological integrity is important to the Clean Water Act because the law regulates discharges to WOTUS.
EPA claims the new rule clarifies regulations and does not expand EPA or Corps authority. Apparently not everyone buys this view. This rule increasingly looks like one of the more controversial regulations in years. Farmers are already complaining, even though the new rule was written to give agriculture the greatest freedom from regulation. Environmentalists love the new rule, and of the multitude of comments already received, over 200,000 offer environmentalist support. Municipal and industrial interests are left wondering how they will be impacted. Spill prevention control and storm water programs are two of many that likely will have to be beefed up to handle the new rule. Farmers may need fewer 404 permits, but M&I interests may find themselves deeper in the permit alligator pit. Many opportunities for hydrologists could arise as a result. For consultants who can offer the appropriate services, the new rule could produce significant new work.