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Administration Releases New Proposed WOTUS

 

On December 11th, the EPA and the Department of the Army announced how the Trump administration wants to replace President Obama’s 2015 Waters of the U.S. (WOTUS) Rule.

Under the Trump administration, wetlands that aren’t directly connected to a larger river or stream would no longer be subject to federal protections, ephemeral streams that flow only after a big rainstorm would not be subject to WOTUS, and irrigation ditches would also not be covered. During the roll out of the proposed rule, EPA’s acting administrator, Andrew Wheeler, said the administration’s proposal is based on the principle that landowners should “be able to tell for themselves whether they have a federal waterway or not without hiring outside consultants.”

The Trump administration attempted to delay the former administration’s compliance deadlines by several years while it worked on this new version. The delay effort was partially struck down in court, leading to confusion about which bodies of water are subject to federal regulation.

The agencies’ proposal 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 Executive 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.

“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,” said R.D. James, Assistant Secretary of the Army for Civil Works. “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 agencies’ 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 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 will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019 and will host a listening session on the proposed rule in Kansas City, KS on January 23, 2019. A pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available here.

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