Wetland Wednesday
March 25, 2020
I have been asked many times over the past few weeks about when the final Navigable Waters Protection Rule (NWPR) will go into effect. Prior to COVID-19 I had conversations with the US Army Corps (Corps) about this. The general feeling at the Corps was that the final rule is due out any day. Post COVID 19, who knows. There is no one to ask.
The NWPR has largely been an EPA directed effort. The Corps is a signatory on the rule, but they are following EPA’s lead. A case in point is that there has been very little communicated to the Corps regional offices about how to implement the NWPR. Most feel that they will deal with it when it comes. To be fair they have not had much to do with the drafting of the rule and many Corps staff are looking at it just like you or I are.
Many of our students have asked about the rulemaking process and history I thought it might be helpful to review how we got here and what the process is to move forward. This is my short history of the NWPR and the Waters of the US definition.
The first law that regulated waterways in the United States is the Rivers and Harbors Act of 1899 (RHA). It is still in force and includes the oldest body of regulations in US history. Its main objective is to regulate discharges and fills into waters used for navigation.
In 1948 the Federal Water Pollution Control Act (FWPCA) was passed to expand the pollution discharge aspect of the RHA. Many lawsuits were argued using the RHA authority that seems a bit unclear as how to handle pollutants. The FWPC attempted to hand this off to the states by incentivizing them to pass pollution laws. This was largely ineffective.
In 1972 the FWPCA was amended under what is now known as the Clean Water Act (CWA). The objective of the Act was to improve and maintain the integrity of the nation’s waters. There was no definition or distinction as to what waters were regulated. It was presumed that all waters were regulated.
The early days of the CWA were focused on point discharges of pollution and was largely managed by the EPA. In 1977 the National Discharge Elimination System (NPDES) rules were added to the CWA and the Corps’ role into wetlands was starting to take shape. Wetlands and waterways were still undefined, but the Corps started developing some technical manuals to help clarify what was going to be regulated.
One of the items that came up in the 1977 CWA update was the need to define federally regulated waters. Some waters would be regulated by the states, but others were Waters of the US (WOTUS). It would take until 1986 for this definition to take written form and it is the one, we use today.
The 1986 definition has been challenged in federal court numerous times. The most significant cases Supreme Court cases were the 2001 SWANCC case and the 2006 Rapanos case. Both resulted in the Corps updated via guidance documents the WOTUS definition.
Many argued that it was inappropriate for the Corps to issue unilateral changes to the WOTUS definition through guidance. Consequently, in 2015 the Obama administration finalized a new and very controversial WOTUS definition. This was known as the Clean Water Rule (CWR). This definition modified the role of the state and was challenged by many states such that only about half of the country was working under the new definition.
In 2019, the Trump administration rolled back the 2015 CWR by a recodification rule. In short, we are now using the 1986 WOTUS definition with some modifications. Ironically, some of the objectors to this rule were the same entity that pushed for the change. There is no pleasing some people. Other objectors are concerned about an apparent rollback on water protections.
On January 23, 2020 the EPA and the Corps signed the NWPR. It will become effective 60 days from the rule’s publication in the Federal Register. It was to have happened by now, but I suspect it has also fallen victim to COVID 19.
I have one final thought on the WOTUS. All the regulations and guidance on the definition of WOTUS have nothing to do with wetlands protection. There is not one syllable in any of the documents that prevents the filling of a wetland. All they do is provide a definition of what is regulated. Just because it is regulated does not mean it is protected. The fact of the matter is that a WOTUS definition is a pathway for permitting and filling a wetland. Remember that the Corps’ job is to authorize discharge and filling activities. You only get in trouble if you don’t tell the Corps that you want to fill a wetland. They almost always give you a permit. It may be expensive, but if you can meet their conditions, fill away. If you want to protect a wetland, perhaps the Corps is not the ones we should be looking too.
Have a safe and healthy week!
Marc