Waters of the United States: A New Era for Federal Wetland Jurisdiction

The government has been trying to figure out which waters are protected under the Clean Water Act for a long time. In 2019, the Trump administration proposed a new rule that would make the rules for protecting wetlands and waterways more strict. This means that the government would have more control over construction and other activities that affect these areas. The definition of “waters of the U.S.” determines which wetlands and waterbodies are regulated by the EPA and the corps. In the early 2000s, Supreme Court decisions caused confusion about which waterbodies the government can regulate. The new rule is supposed to clear up this confusion. President Trump issued Executive Order 13778 in 2017 to review and possibly change the “Waters of the United States” rule. The order directed agencies to consider changing the definition of what counts as “waters of the U.S.” and to interpret navigable waters in a way that aligns with a specific legal interpretation. The agencies are implementing the order in two steps: first, they repealed the 2015 rule and went back to the old definition of WOTUS, and second, they are working on revising the definition of WOTUS to align with the executive order. In 2006, the Rapanos case defined what “waters of the United States” are, setting different approaches to determine their scope. The 2015 WOTUS rule under the Obama Administration redefined protected waters, but faced legal challenges. The rule was eventually remanded back to the agencies and kept on hold in 11 states, as it did not comply with the significant-nexus test and interfered with traditional state authority. The 2019 proposed rule limits the definition of waters of the U.S. to waters that are physically and meaningfully connected to traditional navigable waters. It also includes “adjacent wetlands” as jurisdictional and outlines six categories considered “waters of the United States” including traditional navigable waters and tributaries. Once finalized, the new rule will apply nationwide. Ephemeral features are not considered tributaries under this rule. The 2019 proposed rule changes which bodies of water are protected under the Clean Water Act. It no longer includes some ditches, isolated lakes and ponds, and certain wetlands. It also eliminates the significant nexus test and exempts certain bodies of water from protection, like groundwater and artificial lakes in upland areas. The 2015 rule about which bodies of water are protected by the Clean Water Act was repealed in 2019. But it hasn’t been in effect in Florida since 2018 because of a court decision. Now there’s a new proposed rule for which bodies of water should be protected, and it’s facing a lot of criticism and will probably end up in court. States can still make their own rules about water protection, regardless of what the federal government decides. The Navigable Waters Protection Rule, finalized on January 23, establishes a new definition of Waters of the United States (WOTUS). This rule is part of the Trump administration’s process to change the definition of WOTUS. The rule now only applies the Clean Water Act to “navigable waters” and certain other categories of water, and excludes some types of water that were previously regulated. For the latest updates and the full text of the new rule, go to http://www.epa.gov/nwpr. The court cases mentioned are about rules for protecting water in the United States. Lawyers John J. Fumero, Carlyn H. Kowalsky, and Jack K. Rice, who work at a Florida-based law firm, wrote an article about these cases. They are members of the Environmental and Land Use Law Section. This section is part of The Florida Bar, which regulates lawyers in Florida.

Source: https://www.floridabar.org/the-florida-bar-journal/waters-of-the-united-states-a-new-era-for-federal-wetland-jurisdiction/