By Paul J Sniadecki, MLSA Board Director
For several years, this newsletter has reported on the importance of the Federal Clean Water Act (CWA), which is now over 50 years old. The CWA has been the subject of much litigation and political chicanery over the past decades. The new and long-awaited final rule defining “waters of the United States (WOTUS)” was announced Friday, December 30, 2022. This rule formally rejects the prior Federal Administration’s rollbacks and restores the pre-2015 definition of WOTUS, updated to reflect agency experience and interpretation of Supreme Court case law. You can read the final rule text here.
The final rule sets forth seven categories of waterways that will be federally regulated:
- Traditional navigable waters, such as large rivers, lakes, and water bodies affected by tides;
- Territorial seas that extend three miles out to sea from the coast;
- Interstate waters, such as streams, lakes, or wetlands that cross or form part of state boundaries;
- Impoundments, such as reservoirs and beaver ponds;
- Tributaries, such as branches of creeks, streams, rivers, lakes, ponds, ditches, and impoundments that ultimately flow into traditional navigable waters, territorial seas, interstate waters, or impoundments of jurisdictional waters;
- Adjacent wetlands that are next to, abutting, or near (most commonly located within a few hundred feet) other jurisdictional waters or behind natural or constructed features; and
- Additional waters, such as lakes, ponds, streams, or wetlands that do not fit into the above categories but may be considered jurisdictional if either the relatively permanent standard or the significant nexus standard are met.
The new rule reinstates longstanding clean water protections that were in place prior to 2015 for traditional navigable waters (e.g., waterways that can be used for commercial waterborne recreation such as boat rentals or guided fishing trips), the territorial seas, and interstate waters (i.e., waters that flow across state lines), as well as upstream wetlands, streams, lakes, and ponds that significantly affect those waters. As a result, the rule protects many critical waterways that have been protected by the administrations of both parties for decades. The rule also sets forth exclusions for certain waters and features that have generally been considered outside the scope of “waters of the United States.”
Under this rule, many waters that lost protection under the prior federal administration—ephemeral streams, many wetlands, and other intrastate waters—will be protected if they, either alone or in combination with similar waters in the region, significantly affect traditional navigable waters, the territorial seas, or interstate waters.