The Muddy Waters of WOTUS
Colorado is the only state stayed from a water rule, but how important is WOTUS?

by Avery Martinez

The legal protection of waters throughout the U.S. is a murky and seemingly ever-changing flow of rules, decisions and changes.

Since the passage of the Clean Water Act of 1972, the debate over how best to protect water, which waters are protected and what rights the states have to protect their waters has raged through many presidential administrations and courtrooms.

In May, Colorado Attorney General Phil Weiser filed a lawsuit in U.S. district court over Colorado’s streams and wetlands from a federal rule that he says could leave them vulnerable to pollution under the Clean Water Act, according to a press release. This arose from a new definition of the “Waters of the United States,” referred to as WOTUS, which Weiser said violates the Clean Water Act, contravening controlling U.S. Supreme Court precedent and that “ignores sound science.”

WOTUS was a feature of the 2020 Colorado Water Congress, a nonprofit organization working on water issues in the state, which held a summer conference earlier this month in a session entitled “Is WOTUS Really That Important?”

For John Kolanz, an attorney with Otis & Bedingfield, the answer was “yes,” and later noted that discussion over WOTUS is not a recent phenomenon.

Kolanz believes there is continual confusion and agitation over issues fundamentally important to the act because of competing goals within the act itself — to preserve a state’s authority over its own waters and also to restore and maintain the chemical, physical and biological integrity of the nation’s waters.

He said during his presentation at the conference that three broad categories of importance flow from WOTUS: statutory , cooperative federalism and practical importance.

Understanding the statutory importance of WOTUS begins with the role it plays in statute, Kolanz said. Beginning in 1972, Congress passed sweeping amendments to the Federal Water Pollution Control Act of 1948, creating the “modern-day” Clean Water Act.

The Clean Water Act had many ambitious goals, including the complete elimination of pollutant discharge by 1985, and Kolanz noted that had not been reached yet. The way in which the act sought to achieve that goal, and still strives to achieve it, is through the so-called discharge prohibition, which basically entails the CWA prohibiting the discharge of a pollutant by any person except in compliance with a permit. The discharge of pollutant was defined by Congress to mean “any addition of any pollutant to navigable waters from any point source,” according to Kolanz’s presentation.

“So, the significance there of that last definition is that if what you’re doing is not occurring in navigable waters — it’s not regulated under the Clean Water Act,” Kolanz said. “And so, the question becomes what are navigable waters?”

Kolanz explained that the term “navigable waters” is somewhat ambiguous, and Congress defined navigable waters as the “Waters of the United States” or WOTUS. However, he noted that this term is also ambiguous. Congress then left it to the Environmental Protection Agency and the U.S. Army Corps of Engineers to flesh out the rest, Kolanz noted.

“And that’s why, almost 50 years later, we’re still arguing over what that phrase means,” Kolanz said.

Kolanz noted that many may wonder why Congress wanted to take a broad approach to waters that receive federal protection. He added that Congress was aware that the act couldn’t achieve its goals and the protections did not extend to tributaries of certain water areas.

Water pollution control was considered the responsibility of state and local governments for the first seven decades of the 20th Century, Kolanz said. The 1972 amendments fundamentally changed that — both practically  and politically. Kolanz included 20th Century pictures in his presentation of rivers bursting into flames due to pollutants.

“I don’t want to say that we will see scenes like this again if we don’t keep the strictest definition of WOTUS that’s legally defensible,” Kolanz said. He said he believed there has been a fundamental change since the days in which that water quality is acceptable.

In terms of federalism, like many environmental statutes of its time, the act employs an approach that the federal government applies minimum standards and states can be authorized to employ their own programs in lieu of the federal, Kolanz said.

The first section of the act recognizes that the act was to protect the primary responsibilities of states to address water pollution within its borders, and later says that it expects each state to become responsible for clean water permit programs. For a state to be authorized to implement its own permanent program, that state must show the EPA that the program is at least as stringent as the federal program. WOTUS also defines the minimum scope of an authorized state program.

Practically, WOTUS imposes significant civil and criminal penalties, Kolanz said. He mentioned that in his practice he had seen cases about barrow ditches hinge on whether or not they were defined as WOTUS.

Administrative penalties are set at $23,320 per violation with a max of $278,995, civil penalties are $55,800 per day for each violation and criminal penalties range from negligent penalties set at $2,500-$25,000 per day of violation or up to a year in prison to knowing endangerment ranging up to $250,000 and 15 years in prison and up to $1 million for organizations.

Between 1972 and the current day, there have been many changes to WOTUS about rules and application, such as in 2001 the determination that WOTUS does not extend to isolated waters.

President Donald Trump, within a month of getting into office, announced he would eliminate the Obama era rule surrounding WOTUS, Kolanz said. This resulted in a new rule around WOTUS which provided a narrower definition of WOTUS than the definition issued by the Reagan administration in the 1980s.

The State of Colorado sued the administration over that rule, and were successful in obtaining an injunction, Kolanz said. The new 2020 rule doesn’t include any ephemeral streams or wetlands without a surface connection, according to a May press release from Weiser’s office. The suit states that the new narrow definition of water types protected under the Clean Water Act eliminates federal jurisdiction over a number of tributaries, adjacent waters and wetlands affecting downstream waters without providing a basis for the rule. This in turn leaves snowmelt streams and wetlands in the state vulnerable to pollution.

In June, the court granted Colorado’s amended motion for a preliminary injunction. As such, in 2020, Colorado is the only state in the nation in which the 1986 Rules and other guidance still apply, according to Kolanz’s presentation.

“It’s interesting to note that, absent that injunction, that would have been the third WOTUS rule that applied in Colorado in less than one year,” Kolanz said. “It’s not your imagination, this issue is kind of difficult to stay on top of.”

Kolanz said that the state is concerned that the stay granted them from the Trump rule could leave ecologically significant waters unprotected to risk. He added that the state has been discussing the creation of a “gap program” to address waters which may fall between WOTUS definitions. This program would operate in addition to other water programs.

“And drawing a line with regulation between waters that deserve federal protection and those that do not has been a bit tricky,” Kolanz said. The last two rule makings under Obama and Trump demonstrate that “the point of demarcation is really a political choice that rests somewhere between science and law.”

 

This article appeared in the Sept. 29 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.