What are Waters of the United States (WOTUS) and why does it matter?

The rules, which determine just which bodies of water are subject to federal regulation, has seesawed among the two previous presidential administrations and is now undergoing another major rewrite under the Biden administration. 

One of the last discussions during the 2021 Colorado Water Congress summer conference was to figure out just what’s going on with WOTUS and where it’s headed. 

The issue of just which waters to protect got its early start as a U.S. Supreme Court case in 2006 in Rapanos v. United States over federal jurisdiction on wetlands. In an unusual 4-1-4 ruling, one opinion held that waters must have a “significant nexus” to navigable (i.e. where boats/ships can travel) rivers and seas in order to be protected; a second opinion that said the Clean Water Act “only applies to non-navigable waters if the waters are ‘relatively permanent, standing or flowing bodies of water,’ such as streams, rivers, lakes, and bodies of waters forming geographical features.” But that led to confusion about just how far upstream federal jurisdiction should go in order to protect bodies of water.

Along came the Environmental Protection Agency during the Obama administration in 2014, which issued proposed rules to define exactly what waters would be covered under WOTUS. The proposed rules, set to become permanent in 2015, included wetlands connected to tributaries. The rule drew howls of outrage from the agriculture, oil and gas and homebuilders industries, which all claimed it was massive government overreach. That led to lawsuits and eventually court decisions that blocked the rules from going into place. 

The Trump administration repealed the 2015 Obama rules under executive order, loosening the definition to exclude wetlands and “ephemeral waters” (dry streams that fill when it rains). According to Water Education Colorado, “the US Geological Survey estimates 44 percent of Colorado’s streams are intermittent, meaning they are sometimes dry, and 24 percent are ephemeral, meaning they can be dry for months or years and appear only after extraordinary rain or snow. Just 32 percent of Colorado streams are classified as being perennial, meaning they flow year round.”

Along came the Biden administration, which this year announced a two-step process to deal with WOTUS: the first is to rescind the Trump rule, the second is to hold a series of open forums for the public to comment, which is currently underway.

Mark Pifher, a member of the water congress board, attended one of the early forums, which drew 176 callers. The comments ranged from how wonderful the Trump rule was to how horrible the Trump rule was and that it would cost the nation its wetlands. But along with the comments on the merits or lack thereof of the Trump rule, there was a request from business interests for certainty around the rules, and to consider regional differences in how to deal with WOTUS. The administration has shown a willingness to look at that, Pifher said. 

 The rules’ oscillation between administrations  has made knowing just which waters are protected vague, according to Gabe Racz, a water attorney with the Boulder firm Vranesh and Raisch. 

The question now is how to move forward with infrastructure projects, housing and agriculture while protecting aquatic resources, Racz said. The Biden administration would like to end up with a rule that can stand up to competing interests, Racz explained. That means a rule that could survive challenges and “put in the rear view mirror” which waters are subject to the Clean Waters Act, according to Shaun McGrath, the director of environmental health and protection for the Colorado Department of Public Health and Environment.

The Trump rule significantly narrowed the definition of protected waters, McGrath said. Not only did it exclude wetlands and ephemeral streams, it also left out groundwater. However, the state’s Water Quality Act does cover and protect those waters.

But not all waters are the same, he added. While the Clean Water Act applies to the entire country, it would be difficult to write a rule that is flexible enough to address the regional differences. But “I would suggest this is one of those times. In the arid West, we have to look at our waters differently.” But MCGrath said he also disagreed with those who say ephemeral streams are not worthy of protection. The challenge is when specific streams are identified, McGrath said.

He also supports the call for certainty. “You need to know whether you’re in or out. You can’t have cyclical changing” of the rules, he said. That uncertainty is problematic for regulators, too. If one administration says water is important and the next one says it’s not, and the next one says it is, “that’s not to anyone’s benefit.” 

The 2020 rule had another drawback as it applied to “dredge and fill” permits. That’s when a construction project needs to dredge and fill a site before the project can be built. But some of the sites may be near wetlands or surface waters, and that requires a federal permit. The 2020 rule allowed for dredge and fill permits but only for waters covered under the Trump administration definition, leaving 50% of Colorado’s wetlands exposed. Colorado regulators at the CDPHE would like to add a state permit program, but that effort so far hasn’t gained traction at the state Capitol. 

“We are seeking legislative authority to [set up] a permitting program for these ‘gap waters,'” McGrath* said. 

Also weighing in: Nicole Rowan, director of the Colorado Water Quality Control Division, who said they are relieved the EPA is moving toward a pre-2015 status on WOTUS, although she believes the outcome of the Biden administration rulemaking is likely to be more lawsuits.

Correction: previous version misidentified one of the speakers.