EPA, U.S. Army propose new WOTUS definition

The U.S. Environmental Agency (EPA) and the U.S. Army proposed a new definition of “Waters of the United States” (WOTUS) that clarifies federal authority under the Clean Water Act, the agencies say.

According to the EPA, the proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth and reduce barriers to business development.

“We are pleased that EPA listened as NSSGA (the National Stone, Sand & Gravel Association) advocated that dry streambeds and isolated waters should not be federally regulated under the Clean Water Act,” says Mike Johnson, National Stone, Sand and Gravel Association president and CEO. “We strongly support the administration’s effort to improve rules, such as WOTUS, that have had direct impact on the availability and costs of materials needed for vital infrastructure projects. NSSGA members work diligently to protect the environment, but they need regulatory clarity to do so. We are preparing comments on this rule and look forward to continued work with the administration to refine burdensome regulations.”

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. In addition, the new definition details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall; groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” says Andrew Wheeler, EPA acting administrator. “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.”

The agency’s proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Trump’s February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.'”

The EPA and U.S. Army invited written pre-proposal recommendations and received more than 6,000 recommendations that the agencies have considered in developing this proposal. In addition, the agencies will take comment on the proposal for 60 days after publication in the Federal Register.