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The United States Environmental Protection Agency and the United States Corps of Engineers (collectively, “EPA”) published on December 30 a final rule revising the interpretation of the Clean Water Act of the United States (“WOTUS”) ).
In announcing the final rule, EPA states in part that:
. . . a permanent definition of “waters of the United States” (WOTUS) to reduce uncertainty caused by changing definitions of laws, protect human life and support economic opportunities.
EPA also argues that the final rule:
. . . restores important protections that existed before 2015 under the Clean Water Act for common navigable waters, territorial seas, intertidal waters, and water resources which affects the water a lot. As a result, this action will strengthen the protection of basic water resources that are drinking water sources while supporting agriculture, local economy, and downstream communities.
The WOTUS definition is one of three key provisions of the Clean Water Act. Its importance is enhanced by the fact that it is also important in non-National Pollutant Discharge Elimination System programs such as:
- Section 404 of the Clean Water Foundation Permits
- Section 311 – Oil/Hazardous Substances Emission Requirements
- Clean Water Effluent Control and Mitigation Regulations
As a result, it is easy to understand why the scope of the WOTUS interpretation has been the subject of frequent litigation, legal oversight, legislation, and public policy debates since the enactment of the the aftermath of the Clean Water Act of 1972.
The EPA had previously withdrawn updates to the WOTUS Clean Water Act definition announced during the Trump Administration. It argued that the Trump Administration’s rule “drastically reduces protections for clean water.”
The Trump administration had previously repealed the Obama-era WOTUS amendment. Promulgation of the 2020 law during the Trump Administration was said to be driven by concerns that:
. . . A previous 2015 executive order defining “waters of the United States” may have greatly expanded Washington’s control over land use decisions.
The EPA announced its intention on June 9, 2021, to update Trump’s interpretation of WOTUS. The proposed legislation was published on 18 November 2021.
The final rule is interpreted by EPA as providing a WOTUS interpretation that gives jurisdiction over water bodies that Congress intended to protect under the Clean Water Act. These are said to include:
- Common navigable waters (eg, certain large rivers and lakes)
- The country’s seas
- Medium water
Regarding surface water, EPA argues that the provisions of the final rule:
- Significantly affects the integrity of the groundwater that Congress intended to protect, this law provides a reasonable approach that accommodates local and regional differences. This law accounts for regional differences in water because regional enforcement tools as well as local and regional standards help determine whether water is covered under this law.
The standards for determining the management area for streams, adjacent wetlands and additional water bodies use what are described as “long-term methods.” These two values include:
- Permanent (ie, the water supply must be permanent, stationary, or continuously flowing) connected to the paragraph (a)(1) water supply or water supply with a continuous connection before the surface of such permanent water or in paragraph (a)(1) water.
- Essential nexus (available if it has water [alone or in combination] significantly affects the chemical, physical, or biological properties of navigable waters, territorial seas, or intertidal waters.)
This law will be challenged by many countries, industries and trade associations. Regardless of the outcome, it is important to remember that the states (including Arkansas) have their own licensing regulations for their environmental management activities. Additionally, many of these states have a substantive definition of power that may be broader than the federal equivalent.
An example is found in Arkansas.
The statutory term “national waters” is broader than current or previous WOTUS definitions. The Arkansas Air Pollution Control Act provides that “[i] it shall be unlawful to place . . . waste in that area that can cause pollution of any water of the country.”
Ground water is defined as:
Streams, lakes, oceans, ponds, waterways, waterways, wells, springs, irrigation systems, sewage systems, and all other places where water collects, both surface and underground, of natural or artificial, public or private, enclosed within the country, flowing or bordering the country or any part of the country.
Accordingly, Arkansas’ No-Clean Water Act NPDES programs should not be affected by the WOTUS definition change because they are driven by the state’s definition of “state water.”
A link to the final pre-publication rulemaking notice can be found here.