About the author: Kurt Spitzer is executive director of the Southeast Stormwater Assn. Spitzer can be reached at 850.561.0904.
Confusion and uncertainty over what waterbodies are and are not subject to federal jurisdiction under the Clean Water Act (CWA) has existed for more than a decade. Waterbodies subject to federal jurisdiction under the CWA are termed Waters of the United States (WOTUS).
History of WOTUS
Beginning in 2014, the Obama Administration sought to clarify the application of the CWA by significantly expanding the WOTUS definitions through rules proposed by the U.S. EPA and the U.S. Army Corps of Engineers (USACE). The final WOTUS rules were adopted in late 2015, generating an enormous public outcry from the regulated community and resulting in more than 70 challenges in federal courts to both the rules and the manner by which they had been adopted.
The WOTUS rules were blocked by federal district and circuit courts, pending a determination of their validity before they could be implemented. The Trump Administration then announced its intention to revise or repeal the 2015 rule, and it eventually released a proposed rule to repeal the Obama-era rule with the intention of proposing a new set of definitions in 2018.
The Obama-era WOTUS rule’s unreasonably broad application would likely result in lesser—not greater—protection of our nation’s waters by local government. Those cities and counties required to implement the provisions of their municipal separate storm sewer system (MS4) permits would find that the conditions of their permits would be applied to numerous new waters without any new funding, resulting in a diminished ability to target scarce fiscal resources to those waters where there is a realistic chance of seeing water quality improvements.
Moving Forward
While the Southeast Stormwater Assn. has significant concerns with the 2015 final regulations, it believes that—as of press time—any rules proposed in 2018 should recognize the scientifically confirmed connectivity that exists between certain types of waters. We believe that any proposed rule should contain measures that ensure environmental protection, improve regulatory clarity and reduce burdens on MS4s.
For example, while it is advisable to include a definition of “floodplain” in the 2018 regulations, it should be limited to water bodies located within the 100-year floodplain of waters used for interstate or foreign commerce.
Likewise, when defining the term “adjacent,” the regulations should limit the term to the waters bordering or contiguous to interstate waters and intentionally avoid including terms that further expand the definition, such as “neighboring waters.” While the 2018 language should include definitions for significant nexus, it should not include functions such as the “retention and attenuation of flood waters” and “runoff storage” when determining relevance for a nexus evaluation.
Any proposed regulations for 2018 should confirm that ditches, canals and other waterways that convey storm water to or from features where treatment occurs are included in an exemption, and include all sections of the MS4 permit holder’s system that are upstream from the point of discharge. Exemptions for waste treatment systems should include storm water treatment systems, including detention and retention ponds and green infrastructure, designed to meet CWA requirements or to provide flood control functions. Exemptions for wastewater recycling structures also should be clarified to include storm water recycling structures. Finally, exemptions for storm water control features constructed to convey, treat or store storm water should not be required to be “created in dry land.”
While the 2014 draft regulations and the 2015 final WOTUS regulations left much to be desired in terms of adoption process and rational policy, EPA and USACE should resist calls to limit new regulations to “navigable” waters. The 2018 regulations should be used as tools to improve regulatory clarity, protect water quality, and relieve the burden on local governments and other regulated interests. Following these suggestions would serve to protect our surface water resources while reducing the impacts that the 2015 regulations would have had.
