WILL “WATERS OF THE UNITED STATES” DEFINITION BECOME LESS FLUID?

12/26/2018 | Articles & Alerts

By way of brief background, the federal Clean Water Act prohibits discharges to “waters of the United States” (WOTUS) without a permit. However, there was no definition of WOTUS. In 2015, the Obama Administration finalized the WOTUS Rule, which applied an expansive meaning to the term to broaden federal jurisdiction. In October 2015, the Sixth Circuit delayed the effective date of the WOTUS Rule pending judicial review. In January 2018, the Supreme Court ordered that the Sixth Circuit lift its stay of the Rule.

To delay the implementation of the WOTUS Rule, the Trump Administration responded with the “Suspension Rule” – which delayed the effective date of the WOTUS Rule by two years while the Administration considered a replacement for the Obama-era WOTUS Rule. However, in South Carolina Coastal Conservation League v. Pruitt, the South Carolina Federal District Court issued an order which made the Obama-era WOTUS Rule effective in twenty-six states. The litigation continues.

Now, the EPA and Army Corp. are now proposing a revised definition of WOTUS, which they describe as being “…clear, understandable, and implementable.” The new definition is intended to create a balance between removing hurdles to development while still protecting the nation’s navigable waters. The agencies believe that the new definition will provide clear criteria that will enable a landowner to determine if a project requires a federal permit.

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as 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; stormwater control features; and waste treatment systems.

 The agencies may also engage in a more ambitious program – one that would map or otherwise create a data system to depict the presence or absence of jurisdictional waters.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

If you would like additional information, please feel free to contact Neil A. Stein, Esquire (610) 941-2469 or nstein@kaplaw.com.