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John Reitman

By John Reitman

EPA, Army propose updates to WOTUS rule

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The U.S. Environmental Protection Agency and the Department of the Army have proposed a clear, understandable and implementable definition of "waters of the United States" that clarifies federal authority under the Clean Water Act.

The new rule, proposed Dec. 12, would replace an Obama administration regulation, known as the "Waters of the United States" rule that expanded federal protections to smaller rivers and streams.

The EPA says unlike the "Waters of the United States," the recent proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth and reduce barriers to business development.

Opponents of the Obama-era WOTUS rule say it unduly prevents property owners from being able to fully use their land because the rule's overly broad definition regulates ditches that temporarily flood as federally protected waterways.

The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act three years ago, the EPA said.  

Environmental advocates are concerned the proposed rule could remove pollution and development protections from many U.S. waterways and pose far-reaching effects on the safety of the nation's tap water for more than 100 million Americans.

Proponents of the new rule say it will give landowners more freedom, while environmental advocates are concerned it could remove pollution and development protections from many U.S. waterways.

The proposed rule, says the EPA, would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies - and where it does not.

Under the agencies’ 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.

The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered "waters of the United States." 

The joint proposal from the EPA and the Army Corps of Engineers is the second step in a two-step process to review and revise the definition of "waters of the United States" consistent with President Trump's February 2017 executive order entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States’ Rule." The order states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.
 

Edited by John Reitman





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