This post provides three main points to enhance the situational awareness of EHS managers and staff when thinking about the new proposed WOTUS rule.
Waters of the United States (WOTUS). These are the 5 words that have been at the center of a contentious legal battle since the 1980s. These words have been argued over in the United States Supreme Court, they’ve been interpreted broadly and narrowly, and they’ve been analyzed by legal minds around the country (and perhaps the world, too).
The regulatory history is a topic for a legal journal, not for this blog. Similarly, opinion about the interconnectedness of water resources is most appropriate for a debate among passionate friends and coworkers.
I’ll therefore limit this post to three main points that I think will enhance the situational awareness of EHS managers and staff when thinking about how this new proposed rule will affect their roles and, specifically, the permits that they will need for industry projects and processes.
- The Current Situation – New Definition Proposed
Much of the information about this proposal can be found on this EPA website, including a particularly illustrative infographic which shows which waters are considered WOTUS and are thus protected by the rule, and which are not.
The proposed rule is just that – proposed. Once published in the Federal Register, it will go through a 60-day public comment period and the final rule will come out of the other side of that process.
- What Will Happen?
Based on what happened with the prior rule (2015), which had a more expansive view of the definition of WOTUS, this rule will likely face litigation challenges. The important thing is to be aware that this will take time; first it needs to be finalized and it will likely be challenged in court. The final rule may differ from the proposed rule based on comments received.
Legal issues that water lawyers are intimately familiar with will likely come back to the forefront – perhaps with lawyers questioning whether this new regulation fits into Justice Kennedy’s “significant nexus” analysis or Scalia’s plurality opinion from the Rapanos case.
This is not for an EHS manager to argue over – however, it still matters for your work. If you are working on a project that discharges into a water body, you need to know whether the water body is, or is not, a WOTUS. You should confer with your legal counsel to confirm and to get the required permit(s). If you are a compliance officer, you should also confer with legal counsel and make it a priority to stay up to date on what is happening with the rule and how it affects your company’s operations.
- Why is this so difficult? It’s just water, right?
You might find yourself wondering, “what is the big deal here? How hard can it be to define what is a water of the U.S.?”
Actually, it is quite hard. The reason is that water is above ground (surface water) and below ground (groundwater). It connects to other water. It travels. Water quality upstream affects water quality downstream. There are water bodies that are permanent and those that are ephemeral. There are different types of waterbodies: rivers, streams, wetlands, to name a few. Water isn’t “fixed” in space or time; that’s why it is so difficult to determine which water falls under regulatory jurisdiction of the Clean Water Act; the crux of this proposed rule.
So, in summary, your responsibility is to establish situational awareness – be aware of how this new definition will affect your operations and be proactive. Debate over these five words is not likely to end here, but your job is to gain the knowledge you need to be able to do your job while complying with this constantly evolving definition.
About the Author
As Intelex’s Global Compliance Content Lead, EHSQ Content Strategy, Jessica drives overall content strategy, with a particular focus on overseeing the delivery of high-quality compliance content within the EHSQ Alliance.
Responsible for identifying and cultivating valuable compliance content for EHSQ professionals, Jessica fosters engagement in the EHSQ Alliance by working with experts in the field.
Jessica has over 10 years of public and private sector experience in environmental policy and law. Jessica received her Juris Doctor from Vermont Law School and Master of Laws degree in Environmental Law from The George Washington University Law School. You can follow Jessica on LinkedIn by clicking HERE.