EPA, Army propose new WOTUS definition

December 19, 2018 -  By

The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are proposing a new definition of “Waters of the United States” (WOTUS) that clarifies federal authority under the Clean Water Act.

According to the EPA, the 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.

“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,” said EPA Acting Administrator Andrew Wheeler. “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 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.”

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.

In response to requests from some states, EPA and the Army are exploring ways the agencies 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.

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 Jan. 10, and will host a listening session on the proposed rule in Kansas City, on Jan. 23.

More information including a prepublication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule.

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