On December 11, 2018, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) released its highly-anticipated proposal to clarify the definition of Waters of the U.S. (“WOTUS”) for purposes of Clean Water Act (“CWA”) jurisdiction. This proposal is intended to clarify the scope of federal reach under the CWA and to resolve the legal and regulatory confusion caused by decades of litigation and contradictory guidance from the Agencies. The final version of the rule will replace the widely-criticized 2015 Clean Water Rule which is subject to legal challenges in multiple jurisdictions across the country. Interested parties should review closely and consider preparing detailed comments on the proposal. Comments in support of the proposed approach will be equally important. Comments are due 60 days after publication in the Federal Register, unless extended by the Agencies.
“Waters of the United States”
The proposed definition would include traditional navigable waters (“TNWs”) and territorial seas; tributaries that contribute perennial or intermittent flow to TNWs; certain ditches, lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to jurisdictional waters. “Tributary” would be defined as a river, stream, or similar naturally occurring surface water channel that contributes perennial or intermittent flow to a TNW in a typical year. Adjacent wetlands are those that abut or have a direct hydrological surface connection to other “waters of the United States” in a typical year, meaning the wetland actually touches the jurisdictional water. A direct hydrological surface connection requires inundation or perennial or intermittent flow between the wetland and a jurisdictional water.
Not “Waters of the United States”
The proposal excludes a number of features that were subject to federal regulation under the 2015 rule, such as features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches, prior converted cropland, lakes and ponds created in uplands, storm water control features, and wastewater treatment systems. The proposal includes definitions for “prior converted cropland” and “waste treatment system.” With this specificity in the regulation, there is less room for subjective interpretation that has historically created delays in obtaining jurisdictional determinations and Section 404 permits that are critical to project development. The agencies intend to eliminate regulatory uncertainty, allowing landowners and other regulated entities to more easily determine whether an aquatic resource falls under federal authority.
This long-awaited proposed rule has the potential to be one of the landmark regulatory reforms of the Trump Administration. Regulated entities and interested parties should not pass up this opportunity to assist in the development of a much needed, practical approach that is legally defensible.
