State Action on Bolstering Clean Water Act Protections
What’s the Issue?
Federal jurisdiction under the Clean Water Act (CWA) is limited to “Waters of the United States,” or WOTUS for short. WOTUS defines where the federal government can require permits to protect rivers, wetlands, lakes, estuaries, and other waterbodies from pollution. In the 21st century, this definition has undergone a series of alterations by courts and the US Environmental Protection Agency (EPA). In 2001 the Supreme Court ruled that federal jurisdiction did not extend to isolated intrastate waters, invalidating the existing definition of WOTUS used by the EPA and Army Corps of Engineers. Five years later, the Supreme Court, in a case called Rapanos v. United States, decided that traditionally navigable waters and interstate waters with a “significant nexus” to such waters were subject to CWA jurisdiction. In 2015, the EPA issued a new regulatory definition, expanding the definition of WOTUS and extending federal protections. This expansion included numerous wetlands and headwater streams that had previously been excluded, despite their importance to the water quality of the larger waterbodies they flow into.
Image of hydrologic connections and protections under the Clean Water Act from American Fisheries Society, adapted from a US EPA 2015 graphic.
This new definition was yet again challenged in federal courts, and was eventually replaced in 2020, with a new rule based on Justice Antonin Scalia’s opinion in Rapanos. This rule removed federal protection from wetlands, headwater streams, and ephemeral streams, all of which can have major impacts on the water quality of larger, unquestionably jurisdictional streams. As a result, this “Navigable Waters Protection Rule” (NWPR) became known as the “Dirty Water Rule.” In 2021, EPA withdrew the Dirty Water Rule and is currently working on a replacement rule to define WOTUS. There is also a case pending before the Supreme Court, Sackett v. EPA (or Sackett II) which may redefine WOTUS yet again.
In light of this regulatory uncertainty at the federal level, some states are stepping up and clarifying what streams are protected from unpermitted pollution under their own laws or expanding their state jurisdiction to make sure critical headwater streams are protected.
Examples of State Policy & Regulations
- North Carolina: The Dirty Water Rule’s removal of protections from headwater streams and certain wetlands created a unique situation in North Carolina. Certain isolated wetlands were already protected by state law, but NWPR created a gap that meant many of the state’s wetlands were not protected under state or federal law. North Carolina Conservation Network and others stepped up and asked the North Carolina Department of Environmental Quality to ensure this gap was filled and wetlands were protected.
- Washington, D.C.: As soon as the Dirty Water Rule was issued, the District of Columbia’s Department of Energy and Environment issued its own rule. It ensured that polluters knew the federal drawback didn’t mean the District would be shirking its duties to protect wetlands. Other states like Oregon also let polluters know that wetlands in their state were still protected under state law, notwithstanding any changes in federal jurisdiction.
- EPA’s “About Waters of the United States”
- ECOS Green Report: The States’ Definitions of ‘Waters of the State’ (2009)
- In preparation for the repeal of the Dirty Water Rule, EPA published supplementary materials to the rulemaking that includes a list of state actions on jurisdiction after NWPR. Current information about the implementation of federal jurisdiction is on the EPA’s website.
- Harvard’s Environmental and Energy Law Project has a timeline of the controversy over federal jurisdiction.
- The Status and Trends of Wetland Loss and Legal Protection in North Carolina, North Carolina State Extension Publications, 2022
- Trout Unlimited’s interactive map demonstrates the importance of intermittent and ephemeral streams
- “The contribution of headwater streams to biodiversity in river networks”
- Research from the U.S. Forest Service shows that headwater streams are critical to biodiversity. Judy Meyer, U.S. Forest Service, et al. And National Institutes of Health researchers found that protecting headwater streams positively impacts downstream water quality.
- Richard B. Alexander, USGS, et al. “The Role of Headwater Streams in Downstream Water Quality.” (2007)
- Earthjustice successfully challenged the Dirty Water Rule in federal court in 2021.
- Redefining Waters of the United States (WOTUS): Recent Developments, Congressional Research Service, September 30, 2021
Bolstering CWA Protections Policy Database
|Name||State||Action Agency||Policy Focus||Description|
|Emergency Rulemaking: Critical Area General Rules, D.C. Mun. Regs tit.21, § 2500-2505, 2599||Washington DC||DOEE (Department of Energy and the Environment)||
Clarified that wetlands which had been removed from Waters of the United States (WOTUS) protection were still subject to 401 permitting under DOEE regulations.
|Ordinary High Water Mark legislation (Miss. H.B. 594 (2021))||Mississippi||Department of Marine Resources||
Provided a definition for "Ordinary High Water Mark," a previously undefined term that set the boundaries for coastal wetlands. Not an "expansion" of jurisdiction per se, but admirable step to ensure jurisdictional determinations have a scientific basis.
|Wetland Rule Change: 15A NCAC 02H 0.1400 et seq.; 15A NCAC 02H 0.1301||North Carolina||Environmental Management Commission||
Like the Ohio rule, this rule filled a gap in permitting. NWPR left a category of wetlands in NC under the state's jurisdiction, but without state or federal permitting requirements. This rulemaking established permits for these wetlands.
|State of Ohio Isolated Wetland and Ephemeral Stream General Permit||Ohio||Ohio EPA||
Created a general permit for wetlands and ephemeral streams no longer covered by the federal Navigable Waters Protection Rule (NWPR).
|Memorandum to Environmental Quality Commission (Interpretive ruling)||Oregon||Department of Environmental Quality||
Clarified that Oregon still intended to enforce its waters of the state jurisdiction, notwithstanding changes to WOTUS.
|Rules and Regulations Governing the Administration and Enforcement of the Freshwater Wetlands Act, 250 R.I. Code R. 150-15-3||Rhode Island||Rhode Island Department of Environmental Management, RI Coastal ResourcesManagement Council (CRMC)||
Required establishment of wetland buffers and setbacks, phased out local rules which would conflict with new state regulations. The rulemaking was influenced by the findings and recommendations of a Legislative Task Force (LTF) previously established by the Regulatory Reform Act.
|An act relating to Vermont standards for issuing a Clean WaterAct section 401 certification, VT HB 108 (2021); 10 V.S.A. § 1253||Vermont||Agency of Natural Resources||
Not strictly jurisdictional, but expanded protections under the state's 401 program by ensuring that 401 certification could only be issued in circumstances where there is "no practicable alternative that would have a less adverse impact on wetlands and waters of the state." The bill requires that the State conduct a cumulative impacts analysis of the water quality impacts on waters and wetlands of an activity subject to the CWA section 401 certification.