January 29, 2020
Last Thursday, January 23, 2020 the US EPA and the US Army Corps of Engineers signed the new Navigable Waters Protection Rule. They also released a pre-publication of the new regulation on the EPA website. The new rules have not been published in the Federal Register yet, so an effective date has not been set. However, it will be 60-days from the date of the Federal Register publication. I would expect to see it published in the next couple of weeks.
The new rule will replace the Waters of the US rule (WOTUS) that went into effect in December 2019. It also replaces the 2015 Obama era Clean Water Rules and all other rules and guidance that were in effect. This was not unexpected as the President had promised to repeal and replace the Obama era rule as one of his campaign promises. This promise was largely to mollify the farmers and homebuilders who have been lobbying heavily for the Obama rule to be repealed.
The major tenet of the new rule is to simplify the jurisdictional determination process. At issue is the establishment of what waterbodies are subject to Clean Water Act. This jurisdictional establishment is based solely on the determination of whether a specific waterbody influences interstate and foreign commerce (CWA Section 404). That is the limit of authority granted to the Corps and EPA by Congress in 1972. Protecting the quality of waterbodies is left to the states and tribes to sort out (CWA Section 401).
What has become a very confusing issue for some is what is the Federal WOTUS role. From the onset of the Clean Water and the Rivers and Harbors Act it has been the position of the US Government to manage waters of the US in a manner to maximize commercial benefit. Historically, this has not always been an environmental protection focus. Just because something is regulated does not mean that it is protected. If you look at the WOTUS history the Corps has hardly been a defender of the wetlands. After all, they are the ones who permit the filling of wetlands.
The roles of the states and tribes have also been confused over the years. Under CWA Section 404(g) that state can assume a portion of the Federal WOTUS regulation. However, those same waters must have a commerce nexus. In the past 40 years only New Jersey and Michigan have assumed the 404(g) waters. This assumption was done largely due to a concern that the Corps was allowing too many projects to be authorized under its nationwide permit program.
The other role of the states and tribes in this regard is reflected in CWA Section 401. This is where the states and tribes can veto a Corps permit action due to a concern that the activity will have negative consequences on the water quality of the state or tribal land. This has less of a commerce nexus, but nevertheless it must be established for 401 to apply.
The biggest change brought on by the new Navigable Waters Protection Rule is the establishment of a federal (formally known as significant) nexus. For a water to be applicable to Section 404 it must have a physical surface connection to a commerce (aka navigable) water. The former Kennedy test (Rapanos 2006) that also included chemical and biological connections does not serve as the new federal nexus. The Kennedy test was rather vague and could only be proven with extensive data collection that was rarely, if ever done. In addition, the commerce test would also have to be proven for the water to be deemed jurisdictional and this did not mean protected, just regulated.
The overriding theme of the new rule is that it is up to the local communities to identify which aquatic resources should be protected and regulated outside of obvious commerce connected waters. This may seem like the Corps and EPA are passing the buck but is was never really theirs to pass. Congress in 1972 recognized the state’s and tribe’s role in protecting local waters though local ordinances and zoning. It would seem a bit foolish to expect someone in Washington, D.C. to have the local knowledge and sensitivity of what aquatic resources should be protected in Maine for example. We seem to have subordinated our local role in wetland protection to a centralized federal government. This was not the original vision of the CWA authors nor is a practical way to manage these critical resources.
If this new regulation makes you mad, then do something about it. Contact your local agencies and find out what local wetland laws are already in place and enforced. If there are not any, then get your local government to write some. If they are not being enforced, ask why not. It is a whole lot easier to do this on a local level than to try to get the federal government to take an interest in why vernal pools for example, should be protected. At the end of the day it is about getting something protected or managed rather than complaining about what is going on in Washington.
– Marc Seelinger, Director and Founder The Swamp School