EPA issues proposed rule to replace 2015 WOTUS rule

Updated Dec 13, 2018

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The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) announced a proposed replacement for the 2015 Waters of the United States (WOTUS) Rule that offers a clear, understandable, and implementable definition of “waters of the United States” and clarifies federal authority under the Clean Water Act, which would result in cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” says EPA Acting Administrator Andrew Wheeler, in a press release. “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.”

The proposed rule 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 new 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. This gives states and tribes more flexibility in determining how best to manage their land and water resources.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” says R.D. James, Assistant Secretary of the Army for Civil Works, in the press release. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation’s waters.”

The EPA and the Army are also exploring ways they can work with 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. They invited written pre-proposal recommendations and received more than 6,000 recommendations that they considered in developing the proposal.

“A new measure announced today by the Environmental Protection Agency and the U.S. Army Corps of Engineers will provide the kind of clarity needed to ensure that the waters of the U.S. continue to become even cleaner,” said Associated General Contractors of America CEO Stephen E. Sandherr in a statement release in reaction to the release of the proposed new clean water rule. “The newly proposed clean water rule outlines clear and specific guidelines as to which sites require a federal water permit in addition to state and local water permits, and what needs to be done to protect federally permitted waters.

“The new proposal will provide the environmental protections the Nation’s waterways deserve with the clarity needed to ensure full compliance,” Sandherr added. “In other words, the new rule will keep waters clean by making the rules clear. We look forward to working with federal officials to ensure the completion and implementation of this new clean water rule.”

The agencies will take comments on the proposal for 60 days after it is published in the Federal Register. They will also hold an informational webcast on Jan. 10, 2019, and host a listening session on the proposed rule in Kansas City, on Jan. 23, 2019.

More information is available at: epa.gov/wotus-rule.