WOTUS – Whaaat?

Laura Kunkle October 20 2016

The Clean Water Act of 1972 established the structure for regulating discharges of pollutants into the water of the United States (WOTUS) and regulating quality standards for surface waters. Fast forward to spring of 2014 when the Environmental Protection Agency and the US Army Corps of Engineers issued proposed regulations under the CWA.
 
What followed was more than a year of public comment for and against the proposed regulation. Opponents claimed the new definition of WOTUS would greatly expand the reach of the federal government, granting them authority not only over navigable waters, adjacent water bodies, and primary tributaries – as they do now – but to nearly every water body type, including ephemeral and manmade ditches on croplands, which would be far beyond their current authority. That potential expanded definition of water body type raised concerns with industry.
 
In June 2015, the EPA and Corps published their final rule defining the scope of waters protected under the CWA. EPA claims the rule is needed to protect streams and wetlands that form the foundation of the nation’s water resources from pollution and degradation. This final rule interprets the CWA to cover those waters that require protection in order to reestablish and conserve the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.

But it didn’t end there. In August, one day before the rule was to take effect, a federal judge blocked the rule’s implementation. And thus began months of legal challenges to the ruling and to EPA’s alleged expanded reach. While the court battles have muddied the waters (pun intended), some movement happened in February 2016 when a U.S. Court of Appeals panel for the Sixth Circuit (covering Ohio, Michigan, Kentucky, and Tennessee) determined it had authority to evaluate the challenges to the WOTUS rule. The court found that the WOTUS rule, now rebranded as “Clean Water Rule,” ultimately impacts the agency’s regulatory system, granting the appeals court jurisdiction on direct review.
 
So what does this all mean? Well we won’t know for sure until all the legal challenges have been exhausted. But at the end of the day, the proposed regulation probably depends on where you live. Some states have existing laws that are far broader than the current CWA. If you live in those states, you probably won’t notice any changes. Those in states whose current regulations are less strict than the CWA are likely in for some changes – if the EPA and Corps gets its way in the end. Stay tuned…