New WOTUS Rule

The EPA and the U.S. Army have proposed changes to the Waters of the United States (WOTUS) rule that the EPA says will help sustain economic growth and protect the nation’s water systems.

The proposed rule provides a clearer definition regarding where the federal Clean Water Act is applicable and the differences between waterways protected by federal and state governments.

According to EPA Acting Administrator Andrew Wheeler, landowners will be able to better understand whether a federal permit is required for a project because of the rule change. The President ordered a review of the Waters of the United States rule in February 2017.

This proposal seeks to clarify which waters are covered under the federal Clean Water Act. Recall that the issue of what is and what is not a “water of the U.S.” has been a hotly contested issue for many years, pitting landowners and states’ rights advocates against environmental groups and organizations favoring a more command and control approach to water quality regulation.

Under the Agency’s proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems. For forestry, clarity around ephemeral streams should narrow the types of waters regulated on forestlands. And importantly, this proposal is a first draft for which EPA and the Army Corps of Engineers will be soliciting comment. A 90 day public comment period will commence as soon as the proposal is published in the Federal Register.