WOTUS Whiplash

By: John Kolanz – A version of this article was published in BizWest in April 2020.

In the latest skirmish of a 45-year old battle, the Trump Administration released its rule defining those waters that will receive federal protection under the Clean Water Act (also known as Waters of the United States or WOTUS).  The rule marks the final phase of a process designed to undo a similar effort by the Obama Administration in 2015.  Certain industry sectors (particularly agriculture, mining, and development) enthusiastically welcomed the news; environmental interests not so much.

Waters (or more aptly, aquatic resources) take many forms, from the obvious – rivers and lakes, to the less obvious – wetlands, arroyos, and groundwater.  Drawing the line between resources that deserve federal protection and those that do not can be tricky.

The point of demarcation rests somewhere on a sliding scale between science and law.  While scientists may see an obvious ecological connection between a protected river and a distant wetland, constitutional and other legal considerations may preclude protection of the wetland under the Act.

The Obama rule skewed more to the science side of the scale.  A primary drawback of that rule was its heavy reliance on a potentially complicated case-specific analysis for certain waters to determine whether they were covered.

The Trump rule focuses more on legal considerations and attempts to draw bright lines to make it easier to determine which waters are covered.  (Some lines are brighter than others.)  The drawback to this approach is that it can leave important aquatic resources without federal protection.

Identifying federally protected waters sets a regulatory floor.  The Act allows states to regulate waters not receiving federal protection, but some have laws in place to prevent them from doing so.

Businesses impacting covered waters (for example, by discharging wastewater to a river or by filling in wetlands to allow development) require permits designed to protect the resource.  Obtaining and complying with these permits can be time consuming and expensive.  Failure to do so has its own costs.

The new rule generally identifies the following as protected waters: (1) traditional navigable waters (e.g., Colorado River and Great Salt Lake) and the territorial seas; (2) perennial and intermittent tributaries to those waters; (3) certain lakes, ponds, and impoundments; and (4) wetlands adjacent to other protected waters.  The rule also specifically excludes 12 categories of waters from coverage.

While the general categories of regulated waters have not changed dramatically from previous rules, the way the new rule applies them, particularly tributaries and adjacent wetlands, will decrease the Act’s coverage noticeably from what it has been for decades.  This change will be more pronounced in areas with numerous ephemeral streams, such as Colorado and other Southwestern states.

The rule is scheduled to take effect 60 days after its official publication (which had not yet occurred by the date this article was submitted).  If it becomes effective, it will be the third such rule to apply in Colorado within the past year.

Environmental groups and certain states, who have already indicated that they will file legal challenges in various courts, will ask those courts to prevent the rule from taking effect until the underlying legal matters are resolved.  This may lead to a patchwork of rules across the country, as it did when regulated interests challenged the Obama rule.

Given the length of the battle, and the numerous parties preparing to fight on, one may reasonably ask whether the latest rulemaking will provide the clarity and finality coveted by regulated interests.  It is, in a word, doubtful.

Even if the courts ultimately uphold the new rule, the next Democratic administration will likely reverse course with its own rule that establishes a different point along the sliding scale of what is legally and scientifically defensible.  That rule will face its own judicial challenge.  In addition, states that can do so may become more inclined to step into the fray with their own regulations.  Clarity and finality are likely a ways off.

Eventually, opposing sides may tire of the whiplash, put away their sharp knives, and make an honest run at solving the underlying issue.  The preferred route however, a legislative fix, would be a challenge to navigate given today’s politics.  In the meantime, those wishing to assess their regulatory obligations arising from current or future projects should proceed with caution.

 

John Kolanz is a partner with Otis & Bedingfield, LLC in Loveland.  He focuses on environmental and natural-resource law, including Clean Water Act matters, and can be reached at 970-663-7300 or JKolanz@nocoattorneys.com.

 

 

John Kolanz
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