By Nicole Cook
This article is not a substitute for legal advice. See here for the site’s reposting policy.
On February 14, 2019, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Army Corps) published a proposed rule revising the definition of “Waters of the United States” (WOTUS). The proposal is the second step in a two-step process to review and revise the WOTUS definition to clarify which bodies of water throughout the U.S. are subject to federal regulation under the Clean Water Act (CWA). The agencies are now taking public comments on the proposed revised definition. For information about the long and winding road leading up to the revised definition, what the agencies have proposed for the new definition, and how to submit your comments, keep reading.
What is WOTUS?
This blog has kept its readers updated on all the twists and turns of WOTUS, but if you’re not sure what the WOTUS rule is, you can learn about it in this post.
WOTUS is a term used in the CWA to determine what waters and their conveyances fall under federal and state permitting authority. In 2014, EPA and the Army Corps undertook an effort to rewrite and expand the current WOTUS definition. In 2015, the Obama Administration finalized a new definition of WOTUS, which was immediately challenged in the courts.
In February 2017, President Trump released Executive Order 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the U.S.” Rule, which instructed the EPA and the Army Corps to review and rewrite the 2015 WOTUS rule. Then, in January 2018, EPA and the Army Corps finalized a rule to delay the 2015 WOTUS rule implementation date until 2020, giving the EPA time to develop the proposed revised definition released this month.
The 2015 WOTUS rule is currently in effect in 23 states (California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia and Washington), while regulations from the 1980s are in effect in the other 27 states. If finalized, the proposed new rule would apply nationwide, replacing the patchwork of regulation that has resulted from the litigation.
What’s the new WOTUS definition?
Under the proposal, there would be six categories of federally-regulated waters. The six categories are:
traditional navigable waters like large rivers and lakes, tidal waters, and the territorial seas (e.g., the Mississippi River, the Great Lakes, and the Atlantic Ocean) and tidally-influenced waterbodies, including wetlands, along coastlines—used in interstate or foreign commerce;
tributaries that are naturally-occurring and which flow more than only when it rains (e.g., rivers and streams that flow to traditional navigable waters—such as Rock Creek, which feeds to the Potomac River in Washington, D.C.);
certain ditches that are navigable (the Erie Canal) or affected by tide;
certain lakes and ponds if they are traditional navigable waters (e.g., Lake Champlain), they contribute flow to a traditional navigable water, or they are flooded by WOTUS in a typical year;
impoundments of WOTUS; and
wetlands that abut or are connected to WOTUS.
The proposed rule specifies that if water does not meet one of the six listed categories, it will not be considered a WOTUS.
The proposed definition also identifies waters that would specifically not be regulated. These include:
water 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 (this exclusion would cease to apply when cropland is abandoned (i.e., not used for, or in support of, agricultural purposes in the preceding five years) and has reverted to wetlands;
wastewater recycling infrastructure built in uplands;
storm water control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off, and
waste treatment systems, which include all components, including lagoons and treatment ponds (such as settling or cooling ponds), designed to convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater or stormwater prior to discharge (or eliminating any such discharge.
How do I submit a comment?
The agencies are holding public hearings on the proposed new definition on February 27th and 28th in Kansas City. The hearings are an opportunity for the general public to present data, views or information concerning the proposed definition. You can pre-register for the hearings here. The last day to pre-register to speak at the hearing is February 21st.
You can also submit comments, identified by “Docket ID No. EPA-HQ-OW-2018-0149,” by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov/. Follow the online instructions for submitting comments.
Email: OW-Docket@epa.gov. Include Docket ID No. EPA-HQ-OW-2018-0149 in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
Hand Delivery/Courier: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The comment period closes on April 15th.
Where do I get more information about the new rule?
You can read the proposed rule here.The agencies have also provided a five-page fact sheet, and the EPA and the Army Corps held an informational webcast, which you can view here.
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