For the third time in six years, the federal government will change the definition of waterways that fall under federal protection, a decision that could affect the health of Hoosiers and the state’s wetlands and waterways.
The proposed change drew applause from Indiana environmental groups and criticism from trade organizations such as the American Farm Bureau Federation.
“The Hoosier Environmental Council is very glad to see the federal action that was announced today,” said Dr. Indra Frank, HEC’s director of environmental health and water policy. “I certainly hope that this move will return the Clean Water Act to regulations that are more sensible and science based and take into account the fact that all of our waterways really are very interconnected.”
The Biden administration announced it intends to revise the definition of which waterways are considered “waters of the United States,” a designation necessary for Clean Water Act protection, due to what it calls “destructive impacts” to the environment under definitions finalized in 2020.
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael Regan. “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”
The rule narrowed the WOTUS definition to four categories: territorial seas and navigable waters; perennial and intermittent tributaries; certain lakes, ponds and impoundments; and wetlands adjacent to jurisdictional waters.
Waterways that do not fall under those categories are governed by state regulations, which are often more lenient than federal regulations.
The rule benefitted industries by allowing them to develop land near waterways, mostly wetlands, that formerly fell under federal jurisdiction without having to apply for federal permits.
President Joe Biden ordered the U.S. Army Corps of Engineers to review the rule on his first day in office.
The Corps found there was a 25% reduction of waters protected by federal regulations, a change the U.S. Environmental Protection Agency said led to a “significant reduction” in clean water protections.
The Trump rule omitted protections for waterways that are dry for part of the year, known as ephemeral streams, and isolated wetlands.
Soon after the rule was finalized, the Indiana Department of Environmental Management said it would no longer regulate ephemeral streams as part of its water quality certification, a requirement to receive a permit to undertake a project that could have an effect on waterways protected by federal law.
According to IDEM, before the Trump rule was finalized, 60% of the state’s wetlands fell under federal jurisdiction. After the rule, only 20% was under federal protection.
State lawmakers, emboldened by the federal government’s relinquishment of jurisdiction and by lobbyists, further whittled protections for Indiana wetlands by passing a law that halved the number of wetlands protected by state regulations.
Environmental groups in the Midwest, like the Hoosier Environmental Council and the Chicago-based Environmental Law & Policy Center, welcomed the announcement, saying a science-based definition could return federal protections for some waterways to the benefit of Hoosiers and other Americans.
The process to introduce a new definition could take several years and will most likely attract multiple legal challenges.
The first step, some said, is to remove the Trump-era rule.
“We need to make sure that we're looking at using science to understand watersheds and water systems and make sure that we're creating a rule that will deliver the clean water everybody wants,” said Ann Mesnikoff, federal legislative director for the Environmental Law & Policy Center. “The really urgent first step is for them to end the Trump rule and return to prior guidance, which was based on science and has a record of being implemented. But we need to get this rule out of the way because too many streams and too many wetlands were left unprotected. And that's not going to be good for anybody.”
Industrial trade organizations like the American Farm Bureau Federation oppose the revision, saying the move will reduce regulatory certainty.
“The American Farm Bureau Federation is extremely disappointed in the Environmental Protection Agency’s announcement of its intention to reverse the environmentally conscious Navigable Waters Protection Rule, which finally brought clarity and certainty to clean water efforts,” said AFBF president Zippy Duvall. “Clean water and clarity are paramount, and this is why farmers shouldn’t need a team of lawyers and consultants to farm.”
The battle over the definition of “waters of the United States” originated in the wording of the Clean Water Act. The original CWA established federal jurisdiction over “navigable waters,” a term which lawmakers defined loosely as “waters of the United States,” leading to decades of legal wrangling over exactly what the definition meant.
In 1985, the U.S. Supreme Court heard the first of three cases it would hear over “waters of the United States” and the extent of the CWA’s reach. The Court decided that federal jurisdiction extended to wetlands adjacent to traditional navigable waters, like rivers, because adjacent wetlands have “significant effects on water quality and the aquatic ecosystem” in those waters.
The WOTUS definition was later codified in 1986 and 1988. The regulatory definition of WOTUS included all interstate waters, including interstate wetlands.
The definition was challenged in 2000, and in 2001 the Supreme Court decided that federal jurisdiction did not extend to non-navigable, isolated intrastate waters.
After the Court’s ruling, Indiana lawmakers decided to protect isolated wetlands in the state that lost federal protection, resulting in the 2003 Isolated Wetlands Law, a law that defined which wetlands were regulated by the state and established a way for landowners to be able to develop their land while still preserving the state’s wetlands.
In 2006, the Supreme Court further narrowed the definition of “waters of the United States” to include “only relatively permanent, standing or flowing bodies of water.”
The Obama administration expanded the WOTUS definition in 2015 to extend federal CWA jurisdiction to eight broad categories of waterways.
The expanded definition faced major opposition in Indiana and other states.
A group of states, backed by fossil fuel industry, farming, housing and other business interests, sued to stop implementation of the expanded definition, and, as a result, the 2015 WOTUS definition was never implemented in Indiana and 27 other states.
The Trump administration began the regulatory process to install a new WOTUS definition in August 2017. The process was completed in June 2020.
The Navigable Waters Protection Rule faces multiple legal challenges.