On December 11, 2018, the EPA held a live event online to announce the proposed revision to the Waters of the United States (WOTUS) rule. Many have debated the definition of WOTUS, particularly since its revision in 2015 under the Obama Administration. Many rural farmers and ranchers objected to the 2015 definition, believing that it was overly broad and imposed too many regulations. The EPA and the Army Corps of Engineers back in 2015 expanded federal protection to smaller rivers and streams in order to combat pollution of U.S. waterways, since smaller rivers, streams, and tributaries flow into the larger bodies of water protected under the Clean Water Act.
Back in 2017, the Trump Administration began the process of repealing the 2015 WOTUS definition. Step one involved notice and comment to repeal the existing rule and put back in place the rule from 1986/1988 that was in place before the 2015 revision. Step two involves the proposed revised rule. This proposal will be appear in the Federal Register in the coming days and the public will have 60 days from its publication to comment on the proposal.
The proposed rule is in its pre-publication state and subject to minor change before publication in the Federal Register. Various factsheets are available from the EPA to explain the proposed rule. The proposal reflects the belief that the 2015 rule was an overreach of federal regulation and took local land use decisions out of the hand of the state and local agencies and into the hands of the federal government. The new rule would eliminate the need to make a determination about whether there is a “significant nexus” between a water and a downstream traditional navigable water as required by EPA and Army Corps guidance following the Rapanos decision. Additionally, the need to determine whether a water has a significant nexus to a traditional navigable water, interstate water, or territorial sea as required by the 2015 rule would no longer exist.
The new rule makes no significant change to traditional navigable waters mentioned in the Clean Water Act, and merely identifies territorial seas as a type of traditional navigable water. Additionally, there will be no change to impoundments from the 1986/1988 rules. Interstate waters, given a separate category of jurisdictional waters under the 2015 rule and in practice in the years before 2015, will no longer have an independent category of jurisdiction. Interstate waters will be jurisdictional if they satisfy some other category of jurisdictional waters. Tributaries will also receive different treatment under the proposal. Rivers and streams that typically contribute perennial or intermittent flow to downstream traditional navigable waters will be jurisdictional, but ephemeral features, some of which were jurisdictional under the 2015 rule, will not be jurisdictional. Fewer ditches will be jurisdictional since no ditches constructed in upland and no ditches with ephemeral flow would be jurisdictional. Lakes and ponds will be jurisdictional when they are a traditional navigable water; when they contribute perennial or intermittent flow to traditional navigable waters in a typical year; or, if flooded by a traditional navigable water in a typical year. All adjacent wetlands that are adjacent to traditional navigable waters including territorial seas, tributaries to those waters, jurisdictional ditches, jurisdictional lakes and ponds, and jurisdictional impoundments of otherwise jurisdictional waters will fall into a category of waters of the United States. Adjacent wetlands will mean wetlands that abut or have a direct hydrologic surface connection to other waters of the United States in a typical year. Wetlands physically separated from jurisdictional waters by upland, dikes, barriers, or other structures, and that do not have a direct hydrologic surface connection to other waters of the United States will not be considered adjacent. The definition of waters of the United States will exclude certain waters including groundwater; any ditch other than the ditches specifically identified; ephemeral surface features and diffuse stormwater run-off; prior converted cropland; artificially irrigated areas that would revert to upland once irrigation ceases; artificial lakes and ponds constructed in upland; water-filled depressions in upland incidentally created to construction, mining, or digging for fill; stormwater control features created in upland; and wastewater recycling created in upland. Additionally, the rule would change the definition of several terms including tributary and adjacent wetlands.