The Environmental Protection Agency (EPA) finalized its Waters of the United States (WotUS) rule on Wednesday, May 27th. The rule is meant to clarify what waterways are subject to federal regulations under the Clean Water Act. The EPA has attempted to make the regulatory status of waters located in isolated places more explicit after it was left ambiguous after the Supreme Court's rulings in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006).
“We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water. And we’re doing that without creating any new permitting requirements and maintaining all previous exemptions and exclusions,” EPA head Gina McCarthy told reporters Wednesday.
The final rule brings the following waters under the jurisdiction of the EPA:
- All tributaries to the nation’s traditional navigable waters, interstate waters, territorial seas, or impoundments of these waters
- The final rule provides for individual assessment of adjacency for wetlands and open waters without beds, banks, and high water marks
- Waters, including wetlands that are “adjacent” to traditional navigable waters, interstate waters, territorial seas, jurisdictional tributaries, or impoundments of these waters.
- The final rule clarifies that adjacent waters includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year flood plain to a maximum of 1,500 feet of the ordinary high water mark.
- Some waters (fewer than under current practice) would remain subject to a case-specific evaluation
- The final rule clarifies that isolate or "other waters" includes waters with a significant nexus within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial seas, as well as waters with a significant nexus within 4,000 feet of jurisdictional water.
- Also includes specific waters: Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California and Texas coastal prairie wetlands when they have a significant nexus.
According to the EPA, only about 3% more acreage of wetlands and stream miles would come under Clean Water Act jurisdiction. Environmental groups, such as the Sierra Club, the National Wildlife Federation, and the National Resources Defense Council have applauded the effort, arguing it will help protect the country's water systems and supply. Other organizations have come out in support of the measure, including the National Farmers Union and the American Sustainable Business Council.
Conversely, there are many organizations and members of Congress who see the rule as a major overreach by the EPA and federal government. House Speaker John Boehner released a statement claiming the rule would "unilaterally expand federal authority," and characterized it as a "tyrannical power grab that will crush jobs." Nonpartisan groups have also come out against the EPA's move, including the National Association of Counties and the American Farm Bureau Federation.
The House passed the Regulatory Integrity Protection Act of 2015 on May 12th, which would require the EPA to withdraw its WotUS rule and restart the rule making process. A bipartisan coalition of Senators introduced a bill in April that would require the EPA to rewrite the rule. The House bill will now move to the Senate for a vote, though one has not been scheduled yet. Legal action from a variety of groups is highly likely now that the rule is finalized.
For a more detailed background on the Waters of the United States issue, see Bill to Withdraw Waters of the U.S. Rule Passes House.