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What action was taken?

On January 23rd, the Trump Administration released the final version of the rule which defines which waters are protected under the Clean Water Act.  The new rule is called the Navigable Waters Protection.  It replaces the prior Obama Administration rule referred to as WOTUS- “Waters of the United States.”

Back on February 28, 2017, President Trump signed an Executive Order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States Rule.”  The Order called for repeal of the WOTUS rule and replacement with a new definition of federally protected waters.

The Navigable Waters Protection rule goes into effect 60 days after publication in the federal register.

What is the significance of the action?

The Navigable Waters Protection Rule defines which waters and wetlands in the country are protected under the Clean Water Act.  WOTUS broadly defined federally protected waters.  The Trump Administration wanted to rollback protections under federal law to benefit development and farmers.

For federally protected waters (i.e. waters that are regulated under the Clean Water Act), businesses must obtain permits prior to discharging wastewater into such waters.  In addition, before development can occur which impacts federally protected waters, any person placing fill into either federally protected streams or wetlands must obtain a 404 permit from the Army Corps of Engineers along with a 401 water quality certification from the state or U.S. EPA.

What is the current extent of federal regulation prior to the new rule taking effect?

The Obama WOTUS rule never went into effect nationwide.  As a result, which waters were protected under the Clean Water Act was largely based a test that emerged from years of litigation in the courts.  Following the 2006 decision by the U.S. Supreme Court in Rapanos v. United States, the “significant nexus” test was used to determine which waters were jurisdictional (i.e. federally protected).   Basically, any waters that if impacted could have a chemical or biological impact on navigable waters.  However, under the significant nexus test it was difficult to ascertain how far federal protection extended.  In some cases, it extended to ephemeral streams that were dry except for when it rained.  It could also extend to wetlands that were not adjacent to navigable waters.

What waters are protected under the new rule?

The Navigable Waters Rule covers four categories of waters:

  1. The territorial seas and traditional navigable waters (i.e. waters currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce);
  2. Perennial and intermittent tributaries that contribute surface water flow to navigable waters;
  3. Certain lakes, ponds, and impoundments that contribute surface flow to jurisdictional waters; and
  4. Wetlands adjacent to other jurisdictional waters (in some circumstances even when an artificial or natural barrier exists between the wetland and jurisdictional water).

Which waters are now excluded from federal protection?

The rule specifically excludes certain types of waters from regulation under the Clean Water Act, including the following:

  • groundwater;
  • ephemeral streams (streams that only contain water when it rains);
  • diffuse storm water runoff;
  • categories of road and farm ditches (ditches that constructed to relocate a tributary can be jurisdictional);
  • prior converted cropland (prior to December 23, 1985 was drained or otherwise manipulated for agriculture);
  • manmade features for irrigation;
  • mining, construction or other activities located upland of jurisdictional waters; and
  • wastewater treatment systems

What’s next?

Litigation will certainly continue.  Expect multiple challenges to the new rule.  The legal basis for such challenges will likely include whether the Trump Administration provided sufficient justification for revoking the Obama WOTUS rule.  Legal challenges may also focus on whether the new rule’s definition of federally protected waters is too narrow under the U.S. Supreme Court’s 2006 Rapanos ruling.

Does Ohio have different standards for which waters are protected?

Yes. Ohio was one of a few states that passed separate legislation protecting so called “isolated wetlands.”  Therefore, in Ohio even if the wetland is not protected under the Clean Water Act you will still need to obtain an isolated wetland permit.

Also, the definition of “Waters of the State” under Ohio Revised Code 6111.01 includes:

  • “all streams, lakes, ponds, marshes, watercourses, waterways, wells, springs…” (Ohio EPA takes the position that “all streams” includes ephemeral streams that only receive water when it rains);
  • irrigation systems and drainage systems;
  • underground waters (i.e. groundwater)

Based on this definition of “waters of the state” more waterways, including groundwater, are protected under state law versus the Clean Water Act as defined in the Trump Administration’s Navigable Waters Rule.