Gabriella Hoffman:

On December 11th, the  Environmental Protection Agency (EPA) and  the Army Corps of Engineers announced a sweeping change to the 2015 Waters of the United States (WOTUS) rule that deemed all bodies of water “navigable water.”

Per the official announcement, this rule change would provide “clarity, predictability and consistency” to the Clean Water Act for where it applies and doesn’t apply. In 2015, then-President Obama’s EPA deemed all bodies of water—including puddles and ditches— as “navigable waters” subject to regulation under the WOTUS rule.

Here’s what would be considered “navigable waters” under the new rule change:

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; storm water control features; and waste treatment systems.

This proposal on rule changes would also give more credence to existing state and tribe  regulations that apply to bodies of water in the confines of their borders, regardless if they are so-called “waters of the United States.” The agencies’ proposal also permits “states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.”  

The rule change will clarify—not eliminate—the WOTUS rule emanating from the Clean Water Act.

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,” said EPA Acting Administrator Andrew Wheeler in a press release. “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.”

This clarification of the WOTUS rule is the second of four  steps outlined by President Trump’s February 2017 Executive Order titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” This directive notes it’s within our country’s national interests to ensure navigable waters aren’t polluted while promoting “economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”

The public has 60 days to offer comments on the proposed rule changes. The EPA and U.S. Army will host a joint webinar event on January 10, 2019, followed by a joint listening session on January 23, 2019, in Kansas City, MO.

EPA reins in murky "WOTUS" rule 1

Gabriella Hoffman is a media strategist and columnist based in the Washington, D.C. Metro area. She is an avid angler, gun owner, and new hunter and can be found at http://www.gabriellahoffman.com.

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