The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers on Feb. 14 published their revised definition of the Waters of the United States (WOTUS) rule in the Federal Register, kicking off a 60-day public comment period that extends through April 15, 2019.
The agencies first unveiled the rule on Dec. 11 (GM Dec. 14, 2018), but the public comment period was delayed due to the 35-day government shutdown that began on Dec. 22. The proposed redefinition significantly narrows the types of water bodies that fall under Clean Water Act (CWA) jurisdiction, and would replace the contentious 2015 WOTUS rule developed by the Obama-era EPA.
The new definition is opposed by a number of environmental groups, but supported by agriculture and industry trade groups, including the National Corn Growers Association (NCGA), The Fertilizer Institute (TFI), and the Agricultural Retailers Association (ARA).
The new WOTUS definition would limit regulated waters to traditional navigable waterways; tributaries that contribute perennial or intermittent flow to traditional navigable waterways; certain ditches, provided they function like traditional navigable waterways; certain lakes and ponds, which, like regulated tributaries, contribute flow to a traditional navigable waterway in a typical year; impoundments of otherwise jurisdictional waters, such as check dams and perennial rivers that form lakes and ponds behind them; and wetlands that are adjacent to and have a direct hydrological surface connection to jurisdictional waters.
It also details what water bodies do not fall under WOTUS, including features that flow only in response to precipitation; groundwater, including groundwater drained through subsurface drainage systems; certain ditches; prior converted cropland; artificially irrigated areas that would revert to upland if artificial irrigation ceases; certain artificial lakes and ponds constructed in upland; water-filled depressions created in upland incidental to mining or construction activity; stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off; wastewater recycling structures constructed in upland; and waste treatment systems.
The key changes from the 2015 rule, according to EPA, are in the new rule’s treatment of ephemeral streams, and in its narrower interpretation of jurisdictional ditches, lakes, ponds, and wetlands. The new rule also eliminates “interstate waters” as an independent jurisdictional category.
EPA and the Corps said the proposed redefinition is in response to an executive order signed by President Trump on Feb. 28, 2017 (GM March 3, 2017), and is intended to “increase CWA program predictability and consistency” by providing clarity on which waters are federally regulated, and to “clearly implement the overall objective of the CWA to restore and maintain the quality of the nation’s waters while respecting state and tribal authority over their own land and water resources.”
Both the original 2015 WOTUS rule and the Trump administration’s attempts to derail it have triggered a wave of lawsuits. The 2015 rule was challenged by 31 states and numerous stakeholders in multiple lawsuits, prompting the Sixth Circuit in October 2015 to issue a nationwide stay of the rule (GM Oct. 19, 2015). The stay was lifted in January 2017 when the U.S. Supreme Court determined that review of the rule falls within the jurisdiction of the district courts.
The Trump administration then tried to delay the 2015 rule’s compliance deadline while it worked on a new version (GM June 30, 2018), but those delays were challenged last summer in court (GM Aug. 24, 2018). Subsequent decisions by a number of U.S. District Courts have left a patchwork of enforcement, with the 2015 rule currently enjoined in 28 states and in effect for the remaining 22 states.
Earlier this month, the Natural Resources Defense Council (NRDC) filed a lawsuit in Federal District Court in Washington D.C. against EPA, the Corps, and U.S. Justice Department alleging that the federal agencies failed to provide records regarding their WOTUS redefinition, and failed to show that the 2015 rule was flawed and needed to be rewritten.
EPA and the Corps will hold a public hearing on the proposed new WOTUS definition in Kansas City, Kan., on Feb. 27-28. Originally scheduled for Jan. 23, the hearing was postponed due to the government shutdown.