A new federal rule goes into effect this March, restoring protections to many of our nation’s wetlands and waterways. While there's still room for improvement, efforts are already underway to undermine this important new rule.
The rule involves the scope of waters protected by the nation’s preeminent federal water quality law – the Clean Water Act. The Act protects the country’s “navigable waters,” also known as “waters of the U.S.” (or “WOTUS”), and the federal Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers are tasked with defining which waters are covered. The 1972 Clean Water Act was enacted to restore and maintain the chemical, physical, and biological integrity of the nation’s waters, and lawmakers provided a clear intent to regulate broadly. For most of the law’s first three decades, WOTUS broadly covered virtually all surface waters. However, the definition of WOTUS has subsequently been curbed by the agencies and challenged in court.
In 2015, Surfrider lauded the adoption of the Obama era “Clean Water Rule.” This rule provided clear protections for a number of waters including: (1) traditional navigable waters; (2) interstate waters, including interstate wetlands; (3) the territorial seas (i.e. our oceans); (4) impoundments of waters otherwise identified as jurisdictional (e.g., water bodies created by dams or levees); (5) tributaries of the first three categories; and (6) waters adjacent to a water identified in the first five categories, including “wetlands, ponds, lakes, oxbows, impoundments, and similar waters.” These types of waters automatically received protections under the Clean Water Act, and the Obama era rule would have increased the total number of wetlands protected under the Act by an estimated 2.8-4.6%. Environmental groups estimated the rule would have restored protections to nearly 20 million acres of wetlands and two million miles of streams that provide drinking water for 117 million Americans, though it was challenged in litigation and blocked by the courts.
Then, in 2019, Surfrider opposed a rule change narrowing WOTUS, which threatened more than half of the country's wetlands and an estimated 20 percent of the nation's streams. The “Dirty Water Rule,” as it came to be known amongst Surfrider and our partners, was invalidated by the courts in August 2021.
In June 2021, the Biden Administration announced plans to revise WOTUS, and in December 2022, the Administration released its final new “Revised Definition of 'Waters of the United States'” rule, which goes into effect March 20, 2023. The rule largely returns to the WOTUS definition in place between 1986 and 2015, meaning it’s not as protective as the Obama Administration’s rule.
The new rule categorically protects only some waters: traditional navigable waters (e.g., waters that are or could be used for commercial navigation), interstate waters, and territorial seas (our oceans), collectively known as the “(a)(1) waters”, as well as their impoundments (meaning waters created by discrete structures, often human made, like levees and dams) and adjacent wetlands. On the positive side, the rule notably restores categorical protections to interstate waters, including wetlands that cross state lines, which weren’t categorically protected by the Trump era rule. Additionally, “adjacent” is again defined to mean bordering, contiguous, or neighboring, and wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are considered ‘‘adjacent wetlands.” This means many coastal wetlands, which in many cases would be deemed adjacent to our oceans or other coastal traditional navigable waterways, are likely categorically protected. However, all other protected waters, including tributaries of (a)(1) waters and their impoundments, and wetlands adjacent to relatively permanent tributaries and impoundments, as well as lakes, ponds, streams, or wetlands that aren’t included in the foregoing categories, are only protected when they are determined to be “relatively permanent” or have a “significant nexus” with other protected waters.
Under this rule, the relatively permanent standard encompasses surface waters that have flowing or standing water year-round or continuously during certain times of the year. It appears this standard may be broad enough to capture intermittent streams, and perhaps some ephemeral streams (which were categorically excluded in the Trump Administration’s rule). Meanwhile, significant nexus is shown where the water will “significantly affect” the chemical, biological, or physical integrity of the waters either alone or in combination with other similarly situated waters in the region. Significantly affect is defined as “to have a material influence,” a change from the prior rule, and it’s to be seen whether this will have an effect on covered waters.
Specifically, with respect to tributaries, the relatively permanent standard encompasses tributaries that have flowing or standing water year-round or continuously during certain times of the year (though relatively permanent waters do not include tributaries with flowing or standing water for only a short duration in direct response to precipitation). Tributaries that do not meet the relatively permanent standard, would have to meet the “significant nexus” test to be protected.
The rule also contains exclusions, which don’t apply to the (a)(1) waters, an improvement over the Trump Administration’s rule. For more details, see this fact sheet.
In all, the rule is a significant improvement over the Trump era rule, but still falls short, particularly since many waterways will now be subject to the case-by-case “relatively permanent” or “significant nexus” determinations.
When the Biden Administration initially announced its rulemaking process, it indicated it would be undertaking a two-step process. However, EPA’s Assistant Administrator in the Office of Water, Radhika Fox, has indicated this rule will not be followed by extensive further revisions. While the agency may propose “refinements,” she said, the administration is not currently planning a major second phase.
In the meantime, the rule is already subject to litigation, including by the State of Texas, and an ongoing Congressional challenge. The scope of the Clean Water Act, specifically as it applies to wetlands, is also currently at issue in a major U.S. Supreme Court case. The Court heard arguments in Sackett v. Environmental Protection Agency last October, and the decision will be issued by the end of June. Surfrider will continue keeping a close watch on these developments, as we work to protect clean water for all recreational users.
To speak up for our nation's upstream waters and wetlands, participate in this action alert hosted by our friends at Environment America. Your elected officials in Congress need to hear that you support water protections established by the recent Clean Water Act ruling.