Government Agencies Make Waves With New Definition for WOTUS

Government Agencies Make Waves With New Definition for WOTUS

Since the Waters of the United States (WOTUS) rule was introduced a few years ago, there has been turbulence and confusion surrounding the legislation. Now, the EPA and the U.S. Army Corps of Engineers are proposing what they state as a clear, understandable, and implementable definition of WOTUS that clarifies federal authority under the Clean Water Act.

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“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,” stated EPA Acting Administrator Andrew Wheeler in a prepared news release. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways.”

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.

U.S. Secretary of Agriculture Sonny Perdue praised the announcement. He issued the following statement released by USDA:

“Farmers and ranchers are exceptional stewards of the environment, and states have their own standards as well. This welcome action from the EPA and Army Corps will help bring clarity to Clean Water Act regulations and help farmers know where federal jurisdiction begins and ends.”

According to both government agencies, they invited written pre-proposal recommendations and received more than 6,000 recommendations that were considered in developing the new proposal.

Comments on the proposal will be taken for 60 days after publication in the Federal Register. EPA and the Army also will hold an informational webcast on Jan.10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on Jan. 23, 2019.

More information can be found at https://www.epa.gov/wotus-rule.