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Jodie Murray Burns Explains “Waters of the United States” at Multi-Basin Meeting

The Clean Water Act (CWA) of 1977 is the landmark legislation designed to protect water quality in the United States. More precisely, the CWA sets out to protect “Waters of the United States” (otherwise known as WOTUS), but what are “Waters of the U.S.”? The definition is important because it dictates which waters are regulated under the CWA, regardless of if the waters are on public or private lands.

With the current review and changes to WOTUS definitions by the Trump administration, some waters that have been protected will maintain their status, while other waters will no longer be covered by the CWA. These designations are paramount for water managers, developers, landowners, and others to plan for projects and determine if they need to obtain necessary permits. So, with all this change and complexity, how do we know which waters are covered?

Earlier this month, Jodie Murray Burns gave a presentation at the quarterly meeting of the Multi-Basin Group to explain how WOTUS definitions were developed, how they have changed, and which waters are jurisdictional. Burns is the owner and founder of Cattails Environmental, LLC, a consulting firm located in Northwest Arkansas.

Congress enacted the CWA in 1977, but they did not define WOTUS. Therefore, the administering and enforcement agencies – U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers – and the courts have clarified and defined WOTUS over the years.

The decisions that defined WOTUS prior to 2015 are collectively termed “post-Rapanos 2008”, due to the Supreme Court decision in Rapanos v United States. The last few years have been particularly active with two different efforts, through two different administrations to codify a new definition of WOTUS. Explaining these three sets of WOTUS definitions is what Burns focused her presentation on. She shared a set of maps that does an excellent job outlining the basics of jurisdictional waters under these three scenarios (see graphic below).

Burns said, “The biggest challenge with WOTUS, quite obviously, is that the original law did not define it.”

In 2015, the U.S. EPA under the Obama administration developed a new regulation called the Clean Water Rule (“Rule”), the aim of which was to better clarify which waters are jurisdictional compared to the pre-2015 conglomeration of legal cases and agency guidance letters. Obama’s EPA tried to take into consideration the latest scientific understanding and establish a “bright line” of jurisdiction. For example, a wetland would be considered “adjacent” to navigable waters and thus jurisdictional if it is within 100 feet of the ordinary high water mark or within the 100-year flood plain of a tributary or navigable water, or if it is within 1,500 feet of the Great Lakes or high tide line.

Many states, including Arkansas, brought lawsuits against the EPA, claiming the new Rule was unconstitutional because it expanded federal power over the states. In October of 2015, a federal appeals court issued a stay on the Rule, meaning that the Rule would not take effect until further notice. However, this declaration of a stay by the appeals court went to the Supreme Court, which ruled that the appeals court did not have authority to declare a nationwide stay, and so it was lifted.

The Supreme Court required that all WOTUS cases must begin at the District Court level. Accordingly, cases were refiled, if necessary, at the appropriate district court levels. Therefore, some states are abiding by the 2015 Clean Water Rule and others are not.

Currently, as part of a 2-step executive order from President Trump, the EPA has issued a new rule that repeals the 2015 Clean Water Rule which will take effect on December 23, 2019. The new rule was published in the Federal Register in September 2019 and essentially restores and codifies the regulations and definition of WOTUS that existed prior to the 2015 Clean Water Rule.

Burns says that recent attempts to define WOTUS and clarify perceived inconsistencies in interpretations by the EPA and Corps of Engineers have been promulgated through administrative rule-making, which can lend itself to being more influenced by current administrative views than strong scientific backing.

But the cycle continues, as the EPA and Corps of Engineers under the current administration is working on another redefinition of WOTUS. This 2019 redefinition was published in February of 2019, and administrators are currently in the process of responding to public comments.

Image caption: Jodie Burns delineates wetland areas.

About Arkansas Water Resources Center

Founded in 1964, the AWRC engages with students by supporting student research and providing employment opportunities. The AWRC also operates a water quality laboratory where water samples are analyzed for researchers, students, and the public.

Mission Statement

The mission of the AWRC is three-fold:

  1. to support water research in Arkansas
  2. to train future water scientists and engineers
  3. to share information with stakeholders.

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The AWRC Team

Dr. Brian E. Haggard
AWRC Director
479-575-2879, haggard@uark.edu