Understanding the Clean Water Act of 1972 and WOTUS Jurisdiction
The Clean Water Act of 1972 safeguards U.S. waters from harmful discharges, aiming to protect water quality for humans and aquatic life. The Waters of the U.S. (WOTUS) rule outlines six categories determining federal jurisdiction over various water bodies, with exclusions for specific types of water sources. Public comments from entities like NACO and St. Louis County offer differing perspectives on the 2015 WOTUS rule, highlighting concerns and support for proposed changes to clarify jurisdictional boundaries.
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CLEAN WATER ACT OF 1972 THE CLEAN WATER ACT OF 1972 PROTECTS WATERS OF THE U.S. FROM UNPERMITTED DISCHARGES THAT MAY HARM WATER QUALITY FOR HUMANS AND AQUATIC LIFE
WOTUS SIX CATEGORIES OF FEDERAL JURISDICTION TRADITIONAL NAVIGABLE WATERS TRIBUTARIES CERTAIN DITCHES CERTAIN LAKES AND PONDS IMPOUNDMENTS ADJACENT WETLANDS
EXCLUSIONS GROUNDWATER PITS FOR SAND/GRAVEL EPHEMERAL SURFACE FEATURES WATER FILLED DEPRESSIONS INCIDENTAL TO MINING OR CONSTRUCTION DIFFUSE STORMWATER RUNOFF STORMWATER CONTROL STRUCTURES PRIOR CONVERTED CROPLAND WASTEWATER TREATMENT SYSTEMS ARTIFICIALLY IRRIGATED CROPLAND ARTIFICIAL LAKES AND PONDS
PUBLIC COMMENTS ON WATERS OF THE U.S. STATE OF MINNESOTA, 1854 TREATY AUTHORITY, ST. LOUIS CO., NORTHERN COUNTIES LAND USE COORDINATING BOARD
NACO NACO HAS EXPRESSED MULTIPLE CONCERNS ON THE 2015 WOTUS RULE S IMPACT ON COUNTY-OWNED AND MAINTAINED ROADSIDE DITCHES, BRIDGES, FLOOD CONTROL CHANNELS, DRAINAGE CONVEYANCES, AND WASTEWATER AND STORMWATER SYSTEMS AND HAS CALLED FOR THE FINAL RULE TO BE WITHDRAWN UNTIL FURTHER ANALYSIS AND MORE IN- DEPTH CONSULTATION WITH STATE AND LOCAL OFFICIALS BE COMPLETED.
ST. LOUIS COUNTY COMMENTS JAMES FOLDESI, PUBLIC WORKS DIRECTOR CAROL ANDREWS, ENVIRONMENTAL PROJECT MANAGER OUR OVERALL IMPRESSION OF THE PROPOSED RULE IS FAVORABLE..HAVE INCORPORATED MANY OF THE COMMENTS ON THE 2015 RULES THAT WERE SUBMITTED TO THE AGENCIES BY COUNTY ASSOCIATIONS DURING THE 2015 RULE PROCESS BY WERE NOT INCORPORATED I THE 2015 RULE. THE PRELIMINARY JURISDICTIONAL DETERMINATION PROCESS PROVIDES A TIME-SAVING IMPROVEMENT TO THE PERMIT PROCESS BY ALLOWING AN APPLICANT TO WAIVE THEIR RIGHT TO JURISDICTIONAL REVIEW AND MOVE DIRECTLY TO PERMITTING. ..WE SUPPORT THAT THE PROPOSED RULES MAKE VERY CLEAR THAT A WETLAND THAT HAS ONLY A SUBSURFACE HYDROLOGICAL CONNECTION TO A WOTUS WOULD NOT BE DEEMED JURISDICTIONAL . THIS IS CRITICAL TO EXCLUDING WETLANDS THAT ARE NOT CONNECTED WITH NAVIGABLE WATERS. WE STRONGLY BELIEVE THAT A DIRECT HYDROLOGIC SURFACE CONNECTION SHOULD NOT INCLUDE SUBSURFACE WATER CONNECTIONS BETWEEN WETLANDS AND JURISDICTIONAL WATERS AND SIGNIFICANTLY REDUCING THE ABILITY TO IMPLEMENT AND COMPLY WITH A CLEAR SET OF RULES PROPOSED ADDITION TO DITCH RULES: A DITCH THAT HAS NO RELATIONSHIP TO CURRENT OR PAST NATURALLY-OCCURRING TRIBUTARIES THAT PASSES THROUGH AN ADJACENT WETLANDS ARE PART OF THE JURISDICTIONAL WETLAND BUT IS NOT JURISDICTIONAL AS A TRIBUTARY.
NCLUCB ..THE JURISDICTIONAL UNCERTAINTY UNDER EXISTING FEDERAL DEFINITION(S) OF WOTUS MUST BE RESOLVED. ADDITIONAL CONSULTATIONS WITH STATE AND LOCAL REGULATORS ARE ESSENTIAL. CONCURRENT LEGISLATIVE DELIBERATIONS ON 404 ASSUMPTION MANDATE A MORE THOROUGH DIALOG WITHIN THE STATES REGARDING THE INTERPRETATION AND IMPLEMENTATION OF THE RULE. FURTHER ARTICULATION OF THE JURISDICTIONAL DETERMINATION PROCESS AT THE WATERSHED, COUNTY, REGION AND/STATE LEVEL MUST BE OUTLINED . ULTIMATELY THE WATERS OF THE U.S. RULE IS A MAP WILL THE RULE MOVE FORWARD WITHOUT A MAP OR MANDATED MAPPING COMPONENT OR MOVE FORWARD WITHOUT A MAP THEREBY REPLICATING THE JURISDICTIONAL OVERLAP, REGULATORY UNCERTAINTY, INCONSISTENT APPLICATION AND TIME/COST ISSUES THAT HAVE PLAGUED THIS ISSUE FOR YEARS.
STATE OF MINNESOTA COMMENTS PRIORITIZE THE 404 PROGRAM OVER WOTUS RULE MAKING THE FACT THAT THIS RULEMAKING IS PROCEEDING INDICATES EPA/COE HAVE PRIORITIZED CONTINUING THE WOTUS DEBATE OVER WORKING WITH STATES AND TRIBES TO MORE EFFICIENTLY ADMINISTER THE 404 PROGRAM. THIS IS DISAPPOINTING GIVE THAT THE ADMINISTRATIVE COMPLEXITIES OF THE 404 PROGRAM ARE A MAJOR BARRIER TO STATE-FEDERAL COORDINATION AND TO STATE ASSUMPTION FOR STATES THAT ARE INTERESTED IN THAT OPTION. USING FLOW RATHER THAN CONNECTIVITY TO DEFINE A TRIBUTARY CREATES AN UNCLEAR AND CONFUSING DEFINITION FOR TRIBUTARIES UNDERMINES BASELINE PROTECTION IN CWA: SOME STATES LIKELY TO REDUCE REGULATORY OVERSITE..THE VARIABLE LEVEL OF PROTECTION THIS WOULD INTRODUCE FOR OUR NATION S WATER RESOURCES IS A FUNDAMENT FLAW DIMINISHED PROTECTION IN SOME STATES MAY RESULT IN WATER QUALITY IMPACTS IN OTHER STATES..AS WELL AS MIGRATORY WATERFOWL AND FISH AND WILDLIFE ACROSS STATE BOUNDARIES THE CWA COULD BECOME THE LEAST COMMON DENOMINATOR RATHER THAN ASPIRING TO THE ORIGINAL CONGRESSIONAL INTENT OF FISHABLE AND SWIMMABLE WATERS THROUGHOUT THE COUNTRY . CONCLUSION: ANY DEFINITION OF WOTUS MUST BE BASED ON SOUND SCIENCE AND SUPPORT THE GOAL OF THE CWA. AS CURRENTLY DRAFTED, THE PROPOSED WOTUS DEFINITION FALLS SHORT OF THESE GOAL .
1854 TREATY AUTHORITY (BOIS FORTE BAND AND GRAND PORTAGE BAND) COVERS ALL OR PORTIONS OF COOK, LAKE, ST. LOUIS, CARLTON, AITKIN, AND PINE COUNTIES UNDER THE REVISED WOTUS RULE: THERE WOULD BE AN OVERALL INCREASE IN THE NUMBER OF WATERS UNDER STATE JURISDICTION AND REGULATION. STATES DO NOT HAVE THE SAME TRUST RESPONSIBILITY TO TRIBES AS THE FEDERAL GOVERNMENT. THIS MAY LEAD TO A LACK OF PROPER CONSULTATION OR TRIBAL INPUT BEING CONSIDERED IN A MEANINGFUL WAY IN CASES WHERE A WATER/WETLAND CROSSES STATE AND RESERVATION BOUNDARIES, IT MAY BE UP TO THE STATE AND TRIBE TO REGULATE WITHOUT FEDERAL OVERISIGHT IT IS NOT CLEAR HOW/IF STATES WILL BE ABLE TO PROVIDE THE SAME LEVEL OF PROTECTION FOR THESE WATERS AND WETLANDS PROPOSED FOR DREDGE AND FILL. THIS ALSO HAS IMPLICATIONS FOR STATES, , SUCH AS MINNESOTA, INTERESTED IN ASSUMING 404 PERMITTING AUTHORITY FROM THE USACE SINCE THEY WOULD BE ABLE TO ASSUME MORE WATERS/WETLANDS FOR STATE ENFORCEMENT OF 404 PERMITTING. THIS WOULD MAKE IT MORE DIFFICULT FOR TRIBES TO TRACK PROJECTS THAT REQUIRE A 404 PERMIT AND HAVE MEANINGFUL CONSULTATION ON THOSE PROJECTS THE REVISED DEFINITION MAY MAKE NPDES PERMITS UNDER SECTION 402 NO LONGER REQUIRED FOR SOME FACILITIES UNDER CERTAIN CIRCUMSTANCES .STATES MAY NOW HAVE MORE FLEXIBILITY FOR DETERMINING WHEN A FACILITY DISCHARGING TO A NON-JURISDICTIONAL WATER WOULD NEED A NPDES PERMIT.. OVERALL, THE REVISED DEFINITION OF WOTUS SEEMS TO INCREASE THE STATE S BURDEN FOR REGULATION AND INCREASE THE UNCERTAINTY OF HOW STATES WILL REGULATE, POTENTIALLY MAKING IMPORTANT WATER AND WETLAND RESOURCES MORE VULNERABLE TO IMPACTS. WE RECOMMEND THAT NO CHANGES BE MADE TO THE 2015 RULE THAT DEFINES WATERS OF THE U.S. TO BETTER MAINTAIN THE FEDERAL TRUST RELATIONSHIP WITH AND RESPONSIBILITY TO TRIBES FOR PROTECTING WATER AND WETLAND RESOURCES AND TO BETTER MAINTAIN REGULATORY CERTAINTY.
COUNTY OF MAUI V. HAWAII WILDLIFE FUND SUPREME COURT GRANTED CERTIORI, FEB. 19, 2019 SC WILL DETERMINE IF THE CWA REQUIRES A PERMIT WHEN POLLUTANTS ORIGINATE FROM A POINT SOURCE (INJECTION WELL) BUT ARE CONVEYED TO A NAVIGABLE WATER BY GROUNDWATER . COULD AN AFFIRMATIVE DECISION TO REQUIRE A PERMIT CHANGE THE JURISDICTIONAL RULE?
CONCLUSIONS/QUESTIONS DOMINANT THEME IN COMMENTS: DON T REDUCE FEDERAL OVERSIGHT. RULE WILL LEAD TO UNACCEPTABLE VARIATION AMONG STATES/REGIONS IN WATER QUALITY ENFORCEMENT. THE RULE WITHOUT A MAPPING COMPONENT WILL NOT ACHIEVE REDUCTION IN UNCERTAINTY, OVERLAP, OR REDUCTION IN TRANSACTION COSTS. LONG WAY FROM IMPLEMENTATION: LAWSUITS, INJUNCTIONS, CONGRESSIONAL ACTION STATE OF MN/LOCAL GOV T COORDINATION? WHAT IS THE STATE S FEDERAL ENGAGEMENT PROCESS? WHERE S BWSR COMMENTS??? 404 ASSUMPTION SHOULD MOVE FORWARD WITHOUT RESOLUTION OF THE RULE?
