EPA Proposes Rollback of Wetlands Protections

The EPA has proposed a new regulation to limit wetland protection. The new regulation would redefine wetlands and other water features under the Clean Water Act and will likely limit protections. This is essentially an end to an Obama-era rule that had expanded the definition of protected waters.

“The new rule would define when a wetland or other water feature qualifies for protection under the Clean Water Act, which protects the nation’s ‘navigable waters,’” Clark Morrison, a partner at Cox, Castle & Nicholson LLP, tells GlobeSt.com. “The principal legal question is the extent to which a water must be ‘navigable’ to qualify for protection. For example, we know that seas and major rivers are navigable, but most rivers are fed by small trickles far upstream that are not navigable at all.”

Under the current law, there has been some debate as to what qualifies as a navigable water. “The problem lies in determining the point at which a small flow of water transitions from a non-navigable rivulet into a navigable stream,” says Morrison. “Given that such transitions are gradual in nature, how does the government identify the precise point where jurisdiction over a river begins and ends? Similarly, is a non-navigable wetland protected if it is adjacent to and contributes flow to a navigable river? If so, how much flow is necessary?”

The US Supreme Court has also struggled with the definition since the mid-1980s, according to Morrison. “In its most recent decision, known as Rapanos, the conservative wing of the court, led by the late Antonin Scalia, called for a limited definition that covers only truly navigable rivers—those with a ‘relatively permanent flow’—and abutting wetlands with direct flows to the river,” he explains. “Justice Anthony Kennedy, who provided the critical swing vote, believed no bright line is possible and that determinations should be made on a case by case basis. In Kennedy’s view, a water should be protected if it has a ‘significant nexus’ with a navigable water.”

In 2008, the Obama Administration adopted Justice Kennedy’s opinion; however, the new EPA rule instead adopts Justice Scalia’s more narrow view. “If adopted, the rule would eliminate protections for millions of acres of wetlands around the country that do not actually abut a navigable river or its tributary,” adds Morrison. “It would also limit the Clean Water Act’s protections over ephemeral streams found in the upper reaches of a watershed.”

In general, developers and landowners along with farmers are celebrating the proposed new rule, while conservationists are concerned about the limited protections and potential impacts. In California, however, there is greater concern about the potential impacts. “The proposed rollback of Clean Water Act protections may actually complicate things for landowners, in two significant ways.   First, it will usher in a state-level regulatory program that landowners likely will find problematic,” explains Morrison. “Second, EPA’s proposal greatly complicates compliance with another law, the Federal Endangered Species Act.”