On December 11, leaders from both the EPA and U.S. Army Corps of Engineers gathered to sign a new definition for “waters of the United States”, otherwise known as WOTUS. This new proposal, which has yet to be published in the Federal Register, would replace the 2015 Clean Water Rule, a high priority for the Trump Administration. Both Acting EPA Administrator Wheeler and Assistant Secretary of the Army for Civil Works R.D. James signed the document and lauded the proposal’s ability to provide clarity, predictability, and consistency.
The new rule, if finalized, would adopt a narrower scope for federal jurisdiction over the nation’s waters in comparison to the 2015 rule. The new rule follows closely with Justice Scalia’s plurality opinion from the landmark court case Rapanos v. United States, which concluded that WOTUS should be restricted to “relatively permanent, standing or continuously flowing bodies of water.” Justice Kennedy’s concurring opinion added the qualifier that if a body of water had a “significant nexus” to a downstream traditional navigable water it would also qualify as a water of the United States. The idea of a significant nexus was a significant component of the 2015 Clean Water Rule but has been completely excluded from the 2018 proposal.
The new rule would include six categories as jurisdictional waters:
- Traditional navigable waters and territorial seas;
- Tributaries (but only those with perennial or intermittent flow);
- Wetlands if adjacent to or having a direct hydrological surface connection with a jurisdictional water;
- Ditches (man-made structures that would qualify under tributary or wetlands if natural);
- Lakes and Ponds that contribute perennial or intermittent flow to a jurisdictional water in a typical year; and
- Impoundments of waters in certain circumstances.
The new rule would exclude all other waters including:
- Groundwater;
- Ephemeral features (water flowing in direct response to precipitation);
- All other ditches not included above;
- Prior converted cropland;
- Artificially irrigated areas;
- Artificial lakes and ponds constructed in upland areas and filled by impounding non-jurisdictional waters;
- Water-filled depressions in upland areas due to mining or construction;
- Stormwater control features;
- Wastewater recycling structures in upland areas; and
- Waste treatment systems.
Once published in the Federal Register, the public will have 60 days to comment. The two agencies will also be holding an informational webcast on the proposal January 10, 2019. According to the agency’s unified regulatory agenda, the rule is set to be finalized by September 2019. More detailed notes on the new WOTUS rule can be found on the Regulatory Committee webpage. AMWA intends to make comments on the rulemaking. If members would like to be involved in the commenting process AMWA encourages them to reach out to Stephanie Hayes Schlea, Regulatory and Scientific Affairs Manager, at [email protected].