Waters of the United States Rulemaking Update

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Waters of the United States Rulemaking Update

By: Steve Williamson, CPG

On December 11, 2018, U.S. EPA (EPA) and U.S. Army Corps of Engineers (USACE) unveiled the latest proposal to define Waters of the United States (WOTUS) and limit the jurisdiction of the Clean Water Act (CWA). EPA water chief David Ross and acting EPA administrator Andrew Wheeler stated that the new rule would be much more limited in scope and simpler to apply than the 2015 Obama-era CWA. Acting Administrator Wheeler stated:

“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.”

This proposal follows many years of court cases, both ruled on and pending, over the scope, applicability, and lawfulness of the 2015 CWA. The EPA’s Waters of the United States webpage can be accessed here.

The proposal released on December 11, 2018 defines six categories of jurisdictional waters and the tests for determining if a water body falls into one of those six categories. The six categories are:

  • Traditional navigable waters
  • Tributaries to navigable waters
  • Wetlands adjacent to navigable waters
  • Certain ditches
  • Certain lakes and ponds
  • Impounded waters (caused by damming a waterbody)

Whether or not a tributary or wetland is included depends upon the effect(s) it has on a jurisdictional water body in a “typical year,” a newly defined term that is based on 30 years of data on the tributary or wetland.

The proposal also states what would not be WOTUS. These include ephemeral water bodies, groundwater, ditches (that don’t meet the proposed conditions), prior converted farmland, stormwater control features, waste treatment systems, and wastewater recycling structures (e.g., detention, retention, and infiltration basins and ponds). A fact sheet that discusses details of the six categories and excluded water bodies is available at the EPA’s website.

A copy of the pre-publication proposed rule can be obtained at the EPA’s WOTUS rulemaking website. Due to the shutdown of some federal government offices, the publication of the proposed rule in the Federal Register has been postponed. A comment period will follow publication of the proposed rule in Federal Register.

Published in Cox-Colvin’s January 2019 Focus on the Environment newsletter.

Steve Williamson is a Senior Scientist with Cox-Colvin & Associates, Inc. He holds a BS degree in Environmental Health and an MS degree in Hydrogeology from Wright State University. Mr. Williamson has over 30 years' experience working on brownfields, solid and hazardous waste, and groundwater contamination projects in Ohio and the Midwest.