On Tuesday, December 11, 2018, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) unveiled the Administration’s replacement of the 2015 Obama Administration revision of the rule defining “waters of the United States” (WOTUS). The previous rule significantly expanded Clean Water Act (CWA) jurisdiction to include tributaries and adjacent waters and bring more streams, wetlands and other areas into EPA and Corps jurisdiction. Many stakeholders voiced concerns about the expansive scope of the Rule, including the agriculture, energy and homebuilding industries. Many states also argued that it infringes on state rights.
The 2015 WOTUS Rule has been persistently entangled in courts since its promulgation. Earlier this year, the Trump Administration suspended the rule, which was then partially reinstated by a federal judge, creating a patchwork of regulations for industries and states to follow. (See our August 20 article on this topic.)
When implemented, the revised rule will define fewer bodies as Waters of the U.S. — thereby reducing the bodies of water subject to federal regulation. EPA lays out six categories of waterways that will be regulated under the CWA and excludes all others. The categories include “traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters.”
EPA seeks to use the revision to clarify that any ephemeral body of water or an isolated wetland are not to be regulated as Waters of the U.S. The proposal specifically lists what should not be covered by the CWA, such as streams or ponds that only receive water during or after rainfall or snowmelt. This provision should be especially impactful in the western U.S., where there is both a concentration of ephemeral waterways and energy production. Other waters exempted from the regulatory list include: groundwater, roadside ditches, storm water systems and artificially irrigated croplands. This provision is welcome relief to the agriculture industry, as there were fears that farmers and ranchers would have to apply for federal permits for the numerous ponds formed from rain and irrigation techniques. The proposal also restricts certain types of wetlands from federal protection, such as those that are separated from tributaries by land.
The comment period has been set at 60 days after it is published, and the Administration will accept public comments at a hearing in Kansas City, KS on January 23, 2019.
Reaction and Response
Lawmakers, industry and environmental groups reacted quickly. The chairs of the House and Senate Agriculture Committees, Rep. Mike Conaway (R-TX-11) and Sen. Pat Roberts (R-KS), both applauded the rule on Tuesday, with Roberts attending the unveiling. House Natural Resources Committee Chairman Rob Bishop (R-UT) and Senate Energy and Natural Resources Chainman Lisa Murkowski (R-AK) also weighed in with their support of the rule. Chairman Bishop has been a long opponent of the original rule holding numerous hearings detailing the costs and burdens of implementation. Ag industry groups, such as the American Farm Bureau Federation and National Cattlemen’s Beef Association, which have been leading opponents of the 2015 WOTUS rule, were supportive. As expected, environmental groups, such as the Natural Resources Defense Council, were critical of the new proposal.