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What’s up with the Clean Water Rule?

Monday, March 20, 2017

Joan Darling, Ph.D.

You probably have read that President Trump signed an Executive Order (EO) concerning the Clean Water Rule, but you might not be sure how this affects your project. We’ve developed a white paper that explains the background, current issues, and possible future changes to the Clean Water Rule. Below is a summary of the current situation, with a link to the white paper for more information.

The Clean Water Act (CWA) was enacted in 1972 in response to the polluted condition of many of the nation’s rivers and lakes. The law established regulations to protect water quality in Waters of the U.S. (WOTUS), and included regulations on discharges of liquid or solid materials. Section 404 of the CWA specifically regulates discharges of dredged or fill material into WOTUS. This is the required permit for a project that crosses a stream or impacts a wetland, for example. The problem is that the CWA never precisely defined what is jurisdictional (WOTUS), and what is not (Waters of the State).

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the two agencies charged with administering the CWA, developed guidance that originally covered almost every surface water or wetland in the country. Supreme Court cases in 2001 and 2006 limited their jurisdiction, so in order to determine the new limits on WOTUS, the agencies developed jurisdictional determination guidance in 2008. However, the guidance had a lot of “gray areas” needing case-by-case evaluation, and was often interpreted differently by different regulators. This situation was frustrating for client and consultant alike since there were no clear-cut guidelines as to what type of waters would need a permit.

To clarify jurisdiction and minimize the number of case-by-case evaluations, in 2015 the agencies developed the Clean Water Rule. This Rule drew “lines in the sand” that could be used to know if a wetland or stream was a WOTUS. Unfortunately, many people felt the lines were drawn too broadly, and included areas that should be regulated by the State and not the Federal Government. Several lawsuits challenging the Clean Water Rule resulted in a nationwide stay, thus the Rule is not currently in effect and the 2008 guidance is used to determine jurisdiction.

The Executive Order signed by the President on February 28, 2017 directed the agencies to review the Clean Water Rule and potentially rescind or replace it. The EO did not affect the Clean Water Act, and therefore fill impacts in what would be considered WOTUS under the 2008 guidance would still require a Section 404 permit. In other words, it’s business as usual for now. However, stay tuned as changes are almost certainly coming!   

To read the white paper, click here.

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