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Agency heads announce new definition for Waters of the United States

Proposed rule differentiates between protected federal, state waterways

Posted December 12, 2018

On December 11, Acting EPA Administrator Andrew Wheeler, the Assistant Secretary of the Army for Civil Works R.D. James, and Secretary of the Interior Ryan Zinke signed a supplemental proposed rule to redefine the meaning of “Waters of the United States” (WOTUS) in the Clean Water Act. The proposal would replace the definition of WOTUS found in the 2015 Clean Water Rule, which the Trump Administration said went too far in regulating the number of waters covered by federal permitting requirements.

According to Wheeler, the proposal clearly differentiates between federal and state regulated waterways for the first time.

In his opening remarks, Wheeler said the new proposed rule is intended to do the following:

  1. Allow property owners to “stand on their property and tell if they have a federal water without having to hire outside professionals”;
  2. Clearly define the difference between federal and state protected waterways; and
  3. Provide certainty to the American public and be upheld by the nation’s courts.

Waters that are covered by the proposed rule include:

  • Traditional navigable waters,
  • Tributaries to traditional navigable waters,
  • Certain lakes and ponds,
  • Certain impoundments, and
  • Wetlands that are adjacent to all of the above.

Waters that are not or are no longer covered by the proposed rule include:

  • Water features that appear only after a rainfall,
  • Groundwater,
  • Roadside or farm ditches,
  • Prior converted croplands, and
  • Wastewater or other water treatment areas.

Wheeler pointed out that the proposed rule will not impact other water protections under the Clean Water Act such as protections for the Great Lakes or the Chesapeake Bay.

Interested parties may comment on the proposed rule for 60 days after it appears in the Federal Register. EPA and the Army Corps plan to hold listening sessions on the proposal.

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