Dakota Software's Blog for EHS and Sustainability Professionals
February 7th, 2023 by Dakota Software Staff
Compliance with environmental regulations is a perpetually shifting challenge for Environment, Health, and Safety (EHS) professionals. One aspect of compliance that seems to be continuously in flux is the definition of the Waters of the United States for the purposes of the Clean Water Act, commonly referred to as WOTUS. This regulation has ebbed and flowed for decades, but a finalized revision was recently released by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers.
While the word “finalized” may be a bit premature (more on that in a moment), it’s important for you to stay informed about how these most recent developments could affect your day-to-day programs. Here’s a (very brief) overview of where the WOTUS rule has been, where it might go, and what it all could mean for EHS leaders.
In just the last few years, the WOTUS definition has been repealed, had revisions proposed, and, most recently, been finalized upon publication in the January 18, 2023, issue of the Federal Register with an effective date of March 20. (You can read the full text of the latest revised definition here.) But the legal history behind it goes back 50 years.
The Federal Water Pollution Control Act Amendments of 1972, better known as the Clean Water Act (CWA), was a total overhaul of statutory frameworks with the goal of better protecting national waters from chemical, physical, and biological pollution. But at the center of this goal is a big question—which waterways qualify for protection under federal law?
The scope of what the CWA originally termed “navigable waters” has been a point of contention ever since. After all, it’s not an easy thing to define. When does a simple drainage ditch become a tributary? How close does a protected wetland need to be to a discharge point in order to be considered “adjacent”? What about waterways that dry up seasonally? Without clear definitions, it’s difficult for organizations to know whether they are subject to regulation.
The EPA and Army Corps of Engineers released updated regulations in 1986 that eventually wound up being addressed before the Supreme Court in 2006 with Rapanos v. United States. The plurality decision created two competing tests (“significant nexus” and “continuous surface connection”) for defining Waters of the United States. These two tests have served as the basis for various legal disputes in recent years. A 2015 WOTUS rule greatly expanded the definition under 1986 regulations; the definition was later narrowed in 2020 under the Navigable Waters Protection Rule.
The latest WOTUS rule essentially returns the definition to its pre-2015 framework and covers seven types of water bodies:
Traditional navigable waters
Other waters (that is, those with a significant nexus to other waterways)
Impoundments (such as reservoirs)
What’s more, the Supreme Court is currently considering arguments in Sackett v. EPA, a case that addresses the WOTUS definition and associated permitting under the CWA. The decision could be released very soon—and no doubt will have further implications for environmental compliance and EHS leaders.
Given the convoluted history of WOTUS and the potential for controversy and legal challenges, it’s unlikely that this rule will actually go into effect as written … but it might. Unfortunately, there is no one-size-fits-all approach to take with this kind of regulatory uncertainty. What we can do, however, is look at the compliance implications of the rule as it stands now to help you determine the best course of action for your EHS department and your organization.
Should it be upheld, the new definition of WOTUS would broaden the scope of waters protected under the CWA. This would affect the following:
National Pollutant Discharge Elimination System (NPDES) permitting. If WOTUS prompts wider applicability with the definition change, more facilities and operations will require NPDES permits, perhaps even some that did not previously. In addition, discharge and effluent limits may shift, requiring operational processes to adapt accordingly.
Spill Prevention, Control, and Countermeasure (SPCC) plans. Again, with broader applicability of the CWA, more organizations would need to develop and implement an SPCC plan and its associated compliance obligations.
Other permitting requirements. Depending on the industry and operations, other water-related permitting requirements could increase with the new WOTUS definition. EHS professionals would have to consider compliance obligations surrounding things such as dredging and fill material discharges, stormwater runoff, and pipeline construction.
State and local regulations. States and municipalities (perhaps some more than others, depending on the region) will also be affected by broadening regulatory coverage. EHS managers would do well to see how much of a local compliance gap would have to be bridged in the event the new WOTUS definition eventually becomes final.
As with so many other EHS issues, consider your approach to WOTUS from a risk management stance. Knowing what you do about your operations and facilities, how could they potentially have an impact on waterways? If you do have to meet water regulatory requirements, how big of a hurdle are you facing with the new definition, and how quickly could you bring your organization into compliance? Do you need to complete an audit to learn more to inform your decisions?
The answers to these questions depend on many variables, from your company’s size and location to the equipment and processes used to maintain differing scales of operation. Some managers may find that the final definition would have little or no effect on their organization’s compliance burden, while others may be greatly impacted.
A rapidly changing compliance landscape can leave EHS managers feeling bogged down in a deluge of complex regulations. With so much change, managers may miss the boat altogether on new requirements, leaving their organizations noncompliant and vulnerable to citations and fines. Dakota Software’s EHS Regulatory Alerts can keep you posted with plain-language summaries of the latest rules from EPA, the Occupational Safety and Health Administration (OSHA), and the Department of Transportation (DOT) so you can take the appropriate actions necessary to protect your business.
And that’s only the beginning. View our demo video library to learn how our suite of EHS software tools, fueled by our curated regulatory database, can help you address your organization’s most pressing and challenging compliance obligations—no matter what the regulatory tides may bring.