On December 11 the Environmental Protection Agency (EPA) and the Army Corps of Engineers released its replacement of a rule designed to clarify which waterways in the country are subject to Clean Water Act (CWA) jurisdiction, taking a narrower approach than the Obama Administration’s 2015 Clean Water Rule. The proposal would replace the Obama Administration’s definition of “Waters of the U.S." (WOTUS) with one “that restores the rule of law and the primary role of states in managing their land and water resources,” according to Acting EPA Administrator Andrew Wheeler. ICSC has long advocated for a Clean Water Rule that establishes common sense boundaries for regulation, and this rule is consistent with ICSC’s expressed concerns about the Obama Administration’s position.
The new proposal prohibits regulators from extending federal power over waterbodies that only exist after rainfall or wetlands that are not connected to larger rivers or waterways. The proposal identifies six categories of waters that are WOTUS and subject to federal authority:
- Traditional navigable waters, like the Mississippi River;
- Tributaries, such as Rock Creek, which feeds into the Potomac River;
- Certain lakes and ponds, such as Great Salt Lake; impoundments;
- Wetlands that are adjacent to a WOTUS and,
- Certain ditches, such as those used for navigation or those affected by the tide.
Importantly, the rule also details which waterbodies are not considered WOTUS, such as:
- Features that only contain water during or in response to rainfall;
- Groundwater;
- Many ditches, including most roadside ditches;
- Prior converted cropland;
- Stormwater control features; and,
- Wastewater and waste treatment systems.
Under the previous rule, landowners across the U.S. had to apply for a federal permit to exercise control over waters located on their own property — a costly and time-consuming exercise. Additionally, due to ongoing litigation, the 2015 rule is in effect in 22 states, while 28 other states are subject to the previous regulation issued in the 1980s. This regulatory patchwork creates uncertainty and impedes economic development. Among the goals of the revised Clean Water Rule is establishment of a consistent policy nationwide and restoration of the proper relationship between the federal government and states in managing land and water resources.
EPA and Army Corps will soon open a comment period for stakeholders to weigh in on the draft rule; ICSC intends to submit comments. We expect a legal challenge to the Trump administration's policy, which will almost certainly end up in the Supreme Court. Environmentalists and Democratic-led states have already vowed to sue over the narrowing of the CWA standard.
Abby Jagoda
Vice President, Public Policy