REVISED DEFINITION OF “WATERS OF THE UNITED STATES” (WOTUS)
Continued
On December 11, 2018, the EPA and Department of the Army signed a proposed rule revising the definition of "waters of the United States" to clarify federal authority under the Clean Water Act in a clear and understandable way. The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” in light of the numerous Supreme Court Cases which have challenged the 2015 Rule and consistent with the February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The proposed definition would replace the approach in the 2015 Rule and the pre-2015 regulations. It has been reported that the agencies received thousands of recommendations that they have considered in developing this proposal from a diverse array of stakeholders. A 60-day public comment period was opened and closed on April 15, 2019.
As most people who stay abreast of significant environmental and regulatory developments are aware, the U.S. EPA and Army Corps of Engineers finalized a rule in August of 2015 that significantly expanded the definition of “waters of the United States (WOTUS)” under the Clean Water Act (CWA) of 1972. Many have claimed that (1) this Obama Administration Rule allowed the EPA to expand the scope of its authority beyond congressionally approved limits, and (2) the Rule completely ignored the concerns of stakeholders throughout the United States. The Rule basically eliminated any limitations that the term “navigable” previously imposed on the jurisdiction of EPA and the Corps, allowing them to regulate any or all waters within a state, no matter how small and regardless of whether they were connected to federal interests. Litigation challenging the rule immediately began in several states across the U.S.
Mr. Pruitt released a proposed rule in June of 2017 that would rescind the original Obama Administration rule. Publication of that plan was the first step in a lengthy legal process that must be followed to eventually enact a new regulation. The proposed rule was published in the Federal Register on July 27, 2017 and was open for public comment until August 28, 2017. On June 29, 2018, the agencies signed a supplemental notice of proposed rulemaking to the proposed Step One Repeal. This notice clarifies that the agencies are proposing to permanently repeal the 2015 Rule in its entirety. As part of the initial proposal, the EPA and the Army indicated their intent to recodify the pre-2015 regulations until the agencies finalize a new definition of WOTUS. The supplemental notice gave the public an opportunity to comment on additional considerations that support the proposed repeal. That additional public comment period closed on August 13, 2018.
On December 11, 2018, the EPA and Department of the Army signed a proposed rule revising the definition of "waters of the United States" to clarify federal authority under the Clean Water Act in a clear and understandable way. The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” in light of the numerous Supreme Court Cases which have challenged the 2015 Rule and consistent with the February 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The proposed definition would replace the approach in the 2015 Rule and the pre-2015 regulations. It has been reported that the agencies received thousands of recommendations that they have considered in developing this proposal from a diverse array of stakeholders. A 60-day public comment period was opened and closed on April 15, 2019.
The main goal of the revised definition is to enable the public to clearly understand where the CWA applies and where it does not. It seems to be reasonable that traditional navigable waters, tributaries to those waters, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters are all subject to the CWA and federal regulation. However, and perhaps most importantly, the proposed definition specifically clarifies that ‘‘waters of the United States’’ do not include features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior
converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off; wastewater recycling structures constructed in upland; and waste treatment systems. In addition, the agencies are proposing to clarify and define the terms ‘‘prior converted cropland’’ and ‘‘waste
treatment system’’ to improve regulatory predictability and clarity.
The proposed rule as presented in the Federal Register indicates that the proposed definition revision is intended to strike a balance between Federal and State waters and would carry out Congress’ overall objective to restore and maintain the integrity of the nation’s waters in a manner that preserves the traditional sovereignty of States over their own land and water resources. The agencies believe the proposed definition would also ensure clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. This proposed rule is intended to ensure that the agencies are operating within the scope of the Federal government’s authority over navigable waters under the CWA and the Commerce Clause of the U.S. Constitution.
“For the first time, we are clearly defining the difference between
federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of
dollars on engineering and legal
professionals.”
-EPA Acting Administrator
Andrew Wheeler
It has been reported that some states have expressed interest in participating in the federal jurisdictional determination process, and in response, the agencies are exploring ways to work with their federal, state, and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters. The agencies report that this approach would not require state
governments to establish these datasets, but rather it would make this process available to those agencies that would find it useful.
We here at RT believe that the revised definition provides a great deal of clarity as to what are and are not considered WOTUS. We feel that this revision prevents the further expansion of the federal governments control over local land use decisions. This revised definition will also lead to less confusion and bureaucracy given that States already maintain their own authorities to regulate water bodies within their borders, despite whether they qualify as WOTUS. The number of public comment periods and feedback that has been received by EPA has allowed for this revised definition to be fairer and take into consideration the concerns of stakeholders throughout the U.S.
-Justin R. Lauterbach, QEP
Vice President
Additional fact sheets along with copies of the proposed rule and supporting analyses are available on EPA’s website at :
https://www.epa.gov/wotus-rule
Sources:
1. https://www.epa.gov/wotus-rule
2. Federal Register / Vol. 84, No. 31 / Thursday, February 14, 2019 / Proposed Rules