The Trump Administration’s Navigable Waters Protection Rule (NWPR) went into effect on June 21, 2020. The NWPR greatly reduces federal jurisdiction over both streams and wetlands. Most significantly has been the impact to ephemeral streams (i.e. streams that have water only when it rains or there is snow fall).
However, even intermittent streams have less protection. Under the NWPR intermittent streams must flow “continuously during certain times of the year…” Therefore, not all intermittent streams are protected under the Clean Water Act.
EPA estimates that 58% (some 207,476 miles) of streams are ephemeral or intermittent (headwater) streams that contribute flow to surface water used for drinking water. A large portion of these streams are no longer protected under the Clean Water Act.
Those supporting the NWPR point to the clarity the rule provides after decades of controversy involving the extent of federal jurisdiction under the Clean Water Act. Supporters also note that the NWPR strikes the right balance of cooperative federalism allowing the states to regulate “traditional state waters” such as headwater streams.
In the months after NWPR was finalized responses in the various states has been mixed. Some states had laws that already protect so called “isolated” streams (i.e. streams that are not federally regulated). However, many states didn’t have permitting programs in place that could accommodate the massive influx of permits needed for projects impacting isolated streams.
Other states still don’t have laws that protect so called isolated streams. In these sates, isolated streams have no legal protection.
Thirty-Six (36) States Place Restrictions on Protecting Isolated Waters
How many states do not protecting isolated streams under their state laws? This is not entirely clear.
A study performed by the Environmental Law Institute back in 2013 found that roughly 36 states have state law imposed restrictions on being more stringent than the Clean Water Act. The restrictions could include: prohibiting a state from being any more stringent than federal law; property right limitations; or a combination of both. Thirteen (13) states have absolute prohibitions against being any more stringent than federal law. Such laws, unless repealed, would prohibit a state agency from enacting rules or taking administrative actions to protect so called isolated streams.
In 2013, ELI found the following states do not regulate waters more broadly than the Clean Water Act and have state law limitations on doing so: AZ, AR, CO, DE, ID, IA, KS, KY, LA, MS, MO, MT, NV, ND, OK, SD, TX, UT, WY (a total of nineteen states). It is worth noting that it is possible that there have been changes to state law in these state since 2013.
Ohio EPA estimates that there are approximately 36,000 miles of ephemeral streams throughout Ohio. Existing Ohio law protects isolated streams. However, Ohio EPA did not have a permitting mechanism for isolated streams.
After the NWPR was published, Ohio scrambled to put in place such a permitting mechanism. On June 25, 2020, Ohio EPA issued the Ohio General Permit for Filling Isolated Wetlands and Streams. Under the permit, Ohio EPA did not limit the linear feet of stream that could be impacted under the general permit, but the Director of Ohio EPA reserves the right to deny coverage for any proposed impact to ephemeral streams that would result in significant water quality impacts. How Ohio would address projects needing individual permits due to the size of impacts is still unclear.
Washington law protects isolated streams. However, Washington did not have the permitting infrastructure in place to handle the large increase in permitting requests for projects impacting isolated waters.
Historically, Washington would use administrative orders as a “permit” to allow for impacts to isolated waters. In 2019, of approximately 170 projects impacting waters only five (5) required administrative orders to allow for impacts to isolated waters. With enactment of NWPR, Washington has said it is concerned it will be overrun with applications to allow impacts to isolated waters.
In Colorado, the state legislature was working on a law to regulate isolated waters when the NWPR went into effect. In Colorado, isolated waters were protected, but there was no permitting mechanism to allow for impacts to isolated waters creating, what the state referred to as, a “permitting gap.”
The State sought and obtained an injunction in federal court to block implementation of the NWPR Without an injunction, major projects in the state would be prohibited from moving forward with no state permitting program available to allow for impacts to isolated streams. The federal district court in Colorado v. U.S. EPA et. al. (Civil Action No. 20-cv-1461-WJM-NRN) blocked implementation of NWPR in the State.
Most notably, the Court held Colorado was likely to win its challenge of the legality of the NWPR on the grounds that the NWPR is inconsistent with the Supreme Court decision in Rapanos v. United States. The Court notes that the NWPR consciously adopts the Scalia plurality holding defining the extent of federal jurisdiction under the Clean Water Act. The Court observes that five justices rejected Scalia’s interpretation of the extent of federal jurisdiction and, therefore, the Court is likely to find the NWPR unlawful.