Changes to WOTUS—what’s next?
The new year brings a time of flux for our nation’s water quality regulations. For nearly 50 years, the Clean Water Act (CWA) has reduced contaminants entering our local waterways, but we are still far from reaching water quality goals throughout the country. Now, progress will be further slowed as the definition of Waters of the United States (WOTUS), one of the most widely contested components of the CWA, is revised again.
Recent history of WOTUS
In 2015, a more expansive WOTUS rule was established. The rationale for the change was based on the U.S. Environmental Protection Agency’s (USEPA) Office of Research and Development report Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, which compiled a review of 1,200 studies and advice from subject matter experts into an opinion of exactly which wetlands and streams should be covered by WOTUS.
The conclusions from the report in support of a more stringent WOTUS definition include:
- Streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.
- Wetlands and open waters in riparian areas and floodplains are physically, chemically and biologically integrated with rivers via functions that improve downstream water quality.
- Many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical and biological functions that could affect the integrity of downstream waters and should be evaluated through case-by-case analysis.
- Variations in the degree of connectivity are determined by the physical, chemical and biological environment, as well as human activities, and these variations support a range of stream and wetland functions that affect the integrity and sustainability of downstream waters.
- Incremental contributions of individual streams and wetlands are cumulative across entire watersheds, and their effects on downstream waters should be evaluated within the context of other streams and wetlands
The 2015 rule was intended to provide better protection of our waterways, but it was not without flaws. USEPA’s legal procedures were challenged, and there were implementation issues at the federal and state levels. Due to court litigation, as of July 2019 the 2015 rule remained in effect in only 22 states, the District of Columbia and the US territories. In October 2019, the 2015 rule was repealed.
A newly revised rule was just sent to the White House for review. The proposed rule is expected to include the following waters under the definition of WOTUS:
- Traditional navigable waters, including territorial seas
- Certain ditches
- Certain lakes and ponds
- Impoundments of WOTUS
- Wetlands adjacent to WOTUS
Expected to be excluded from the definition of WOTUS are any waters not included above, such as wetlands outside of riparian areas and floodplains, and ephemeral features that only flow in response to rainfall. Some sources predict that the new rule will reduce federal oversight of over 50% of wetlands and nearly 20% of streams nationwide.
As the year ends, so could federal protection of many of our wetlands and streams. WOTUS may be up in the air for now, but one thing is certain: the new definition this year will spark plenty of continued discussion and debate.
As water quality concerns increase throughout the nation, we at Mead & Hunt strive to find the balance between the regulatory process and environmental protection. Providing clean, safe and workable water solutions will continue to be our top priority moving forward.
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