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Whoa to “WOTUS”

03.23.2016

One of the most contentious proposed rules that the U.S. Environmental Protection Agency has ever issued is the recent definitional change to "waters or the United States". The U.S. EPA and Army Corps of Engineers issued this rule last summer in an attempt to clarify jurisdiction under the Clean Water Act. A determination of jurisdiction is critical because any water feature that is under federal jurisdiction is subject to federal permitting if changes are planned for the feature. The existing WOTUS definition has been interpreted by a series of U.S. Supreme Court rulings over the years which has caused tremendous uncertainty in how to apply the definition.

The proposed WOTUS regulation received over a million comments during the public notice period. Shortly after the rule was issued, a number of states filed lawsuits in federal courts across the country to halt the rule. Similarly, a cross section of groups from chambers of commerce to agricultural groups and even environmental special interest groups challenged the rule. Many thought that the rule expanded federal jurisdiction to unlawful extremes and that it threatened state’s abilities to regulate land use. On the other extreme, environmental groups believe it should go further and that EPA folded under pressure. [FN]

On the judicial front, a Federal District Court in North Dakota and then a Federal Court of Appeals in Cincinnati put a halt to the rule’s implementation. The current status of the WOTUS rule is that it is not in effect pending the outcome of litigation. Congress has also made several unsuccessful attempts to halt any additional work on the rule. The EPA and its co-regulating agency, the Corps of Engineers, have stated that the former rules for determining federal jurisdiction over water quality would remain in effect for the time being.

The question becomes, how do we fix the underlying problem of a confusing application of the WOTUS definition? The federal agencies had one thing right when they set out to fix the definition. The current system is broken. Timing to get federal permits for wetlands and other projects is incredibly long. Likewise, the cost of obtaining a permit has gotten prohibitively expensive. Much of the delay and cost is caused by confusion over what waters, especially marginal water bodies, are subject to the Clean Water Act as determined by the Corps of Engineers.

One effort that is not getting much attention is an EPA advisory panel’s efforts to figure out how to get the Corps’ permit program more easily delegated to the states. Nearly all of the other permit programs under the Clean Water Act can and have been delegated to states to administer. This program, the Section 404 program, has remained with the federal Corps of Engineers in all but two states. States are much better equipped to work through jurisdictional questions because states are able to identify the important water bodies and work with landowners and citizens on how to manage the impacts of projects on them. If this can get worked out there may be hope to getting a common sense way to clear up the problems with WOTUS. In the meantime, everything old is new again. There is no doubt that the proposed rule expanded jurisdiction.  The only question is, "by how much?"  An analysis is available on the Koley Jessen website which interprets the rule and possible impacts if it takes effect.  The analysis is available here:

assets/htmldocuments/wp-content/uploads/Jurisdiction-under-the-Federal-Clean-Water-Act-after-the-Clean-Water-Rule.pdf.

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