Deep Dive: Bolstering Clean Water Act Protections
A Quick Overview of the Waters of the United States (WOTUS)
What do the words “Waters of the United States” (WOTUS) make you think of? These words hold a lot of meaning for water protectors. The Clean Water Act (CWA) protects “navigable waters,” which are defined in statute as “waters of the United States, including the territorial seas.” Beyond this short definition, WOTUS isn’t further defined, which has left the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps)- the two federal agencies who administer the statute- to define the term in regulations. The definition of WOTUS helps determine which waters are federally regulated and protected. Over the past twenty years, Supreme Court rulings interpreted the CWA’s scope more narrowly than EPA and the Corps, causing uncertainty. In 2015 the two agencies issued a Clean Water Rule to clarify regulatory jurisdiction. This new rule was controversial from across the political spectrum for varying reasons.
The Trump Administration rescinded and revised the 2015 Clean Water Rule, replacing it with the Navigable Waters Protection Rule (NWPR), also known as the “Dirty Water Rule,” which went into effect in June 2020. The Dirty Water Rule narrowed the scope of federal jurisdiction, excluding waters such as ephemeral streams and narrowing the definition of adjacent wetlands and tributaries. A variety of stakeholders, including tribes, states, and environmental groups, challenged the NWPR in several court cases. Over the course of the Biden presidency thus far, several actions taken by courts, the EPA and the Corps, and via executive order have created a tumultuous journey for WOTUS. Due to court orders vacating NWPR, EPA and the Corps stopped implementation of the rule and are interpreting WOTUS using the pre-2015 regulations. Meanwhile, clean water advocates are engaging in public meetings and roundtable discussions with EPA and the Corps to convey the importance of protecting waters, including ephemeral streams and wetlands that are at risk of pollution and development.
At the state level, states have authority to protect waters that are not covered by the CWA jurisdiction. According to research by EPA and the Corps, at least half of the states “regulate at least some waters beyond the scope of federal CWA requirements.” However, thirteen states require that their state regulations mirror CWA regulations and seven prohibit state environmental agencies from creating state regulations that go beyond federal regulations, including geographic jurisdiction.
Some states have stepped up to the plate, ensuring that reduced federal protections don’t pose a threat to their residents’ rights to fishable, swimmable, drinkable waters. North Carolina, Ohio, and the District of Columbia all published administrative rules that ensured their states retained jurisdiction over wetlands and streams that were no longer under federal jurisdiction. Vermont’s Department of Environmental Regulation adopted a new rule requiring that all permits have minimal impacts to state waters, and Rhode Island adopted new buffer and setback regulations for wetlands as well.
Lessons from North Carolina
Across the country, the Dirty Water Rule’s removal of protections from headwater streams and certain wetlands created uncertainty about state jurisdiction and highlighted gaps in protection. In North Carolina, some isolated wetlands were already protected by state law, but the Navigable Waters Protection Rule (NWPR) created a gap that meant as much as 30 percent of the state’s wetlands were not protected under state or federal law. North Carolina Conservation Network, Southern Environmental Law Center, Carolina Wetlands Association and others urged North Carolina Department of Environmental Quality to create a rule to ensure this gap was filled and wetlands were protected.
Key Policy Language
Discharges to Isolated Wetlands and Isolated Waters
“If the U.S. Army Corps of Engineers (USACE) or its designee determines that a particular water is not regulated under Section 404 of the Clean Water Act, and the water meets the definition of isolated waters in Paragraph (f) of this Rule, then discharges to that water shall be covered by this Section.”
Isolated Wetland Definition
“”Isolated Wetland” means: (A) a wetland confirmed to be isolated by the USACE prior to June 22, 2020; or (B) a wetland that has been determined to be non-jurisdictional by the USACE after June 22, 2020 and for which an evaluation confirmed by the Division documents that a significant nexus is not present pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States memorandum dated December 2, 2008 (available online at: https://deq.nc.gov/about/divisions/water-resources/water-quality-permitting/401-bufferpermitting-branch/401-isolated)”
Isolated Waters Definition
“”Isolated Waters” means: (A) a surface water confirmed to be isolated by the USACE prior to June 22, 2020; or (B) a surface water that has been determined to be non-jurisdictional by the USACE after June 22, 2020 and for which an evaluation confirmed by the Division documents that a significant nexus is not present pursuant to the Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States memorandum dated December 2, 2008.”
Advocacy and Implementation Efforts
Efforts to establish this rule through the North Carolina Department of Environmental Quality (NCDEQ) goes all the way back to 1997. According to Grady McCallie, Policy Director at North Carolina Conservation Network, Supreme Court decisions and the Dirty Water Rule created a roadblock in the state’s wetland permitting jurisdiction. Isolated wetlands that did not have a permanent surface water connection but connected hydrologically were not covered by state or federal jurisdiction. Advocates from river basin, state, and national-level organizations urged NCDEQ to adopt a temporary rule, and then mobilized supporters to establish a final rule to protect wetlands. The temporary rules were adopted in May 2021 and expired March 12, 2022. During the public comment period for the proposed permanent rule, several organizations submitted comments, including a petition with over 700 signatures from supportive North Carolinians. The North Carolina Farm Bureau, North Carolina Home Builders Association, and North Carolina Aggregates Association (made up of sand and gravel miners) opposed the rule. The permanent rule, Impacts to Federally Non-jurisdictional Wetlands and Classified Surface Waters, and a rule amendment to Discharges to Isolated Wetlands and Isolated Classified Surface Waters, went before the Rules Review Commission (RCC) in February 2022. Staff turnover in spring of 2022 at the RCC brought in some anti-regulatory leanings, and led to an objection to the permanent state wetlands permitting rule.
Despite this roadblock, support for protecting wetlands spans across the political spectrum. McCallie notes that “In 2016 and 2018, North Carolina experience two 500+ year hurricanes and floods, so a lot of state legislators and decisionmakers have had direct experience of the importance of wetlands for flood attenuation. In general, across the political spectrum, North Carolinians know that wetlands help reduce flooding, want them protected, and also don’t want an absolute prohibition on their development. Our messaging emphasized that balance, underpinned by the need to protect wetlands for their many benefits, especially flood reduction.”
Stay tuned for future developments and/or let us know if you’re tracking the saga of this rulemaking process.