EPA Unveils New Waters of the United States Definition

The United States Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) unveiled a new proposed “Waters of the United States” (WOTUS) definition on December 11, 2018. The WOTUS definition under the federal Clean Water Act determines what waterways are subject to the Act’s protections and permitting requirements. The proposed definition will replace a controversial 2015 change to the definition that caused concern for many local governments and agricultural interests.

History of WOTUS Definition

The traditional WOTUS definition primarily applied to “navigable waters.” However, under the Obama Administration, the EPA and Corps proposed an expanded WOTUS definition in 2015 that included wetlands and waterways with intermittent flows. The Administration argued that the changes were needed to provide greater clarity and certainty regarding the application of the Act. The definition was supported by environmental groups but opposed by many local governments and agricultural interests, who believed the new rule would subject road ditches, irrigation channels, and stormwater drainage systems to the Act’s requirements.

The National Association of Counties (NACo) was among those organizations opposed to the 2015 WOTUS definition. MACo also submitted comments expressing concern and asked EPA to clarify that the definition’s language would not apply to county-owned ditches and stormwater drainage channels. Despite providing verbal assurances that the new rule would not apply to such structures, EPA refused to consider a clarifying amendment before the rule was finalized.

However, the finalized definition was put on hold in 2017 by the new Trump Administration while a new version of the WOTUS definition was drafted. That hold was partially undone in early 2018 by a federal District Court ruling, which reinstated the 2015 definition in Maryland and 21 other states. While the hold was overturned, EPA and the Corps continued to work on a new definition designed to eliminate the concerns raised by the 2015 definition while still addressing some of the vagueness issues posed by the traditional definition.

What’s in the Proposed WOTUS Definition?

The proposed definition seeks to create greater certainty as to when the Act applies or when state water quality laws apply. The new WOTUS  definition would include six categories of waterways that fall under the Act:

  1.  Traditional Navigable Waters (now includes the previously separate category of territorial seas)
  2. Tributaries (waterways that provide perennial or intermittent flow to traditional navigable waters)
  3. Certain Ditches (includes ditches that: (meet navigable water criteria, such as the Eerie Canal, or are subject to the ebb and flow of the tide; or (b) meet tributary criteria and were constructed in a tributary or in adjacent wetlands)
  4. Certain Lakes and Ponds (includes lakes and ponds that are: (a) traditional navigable waters, such as the Great Salt Lake; (b) contribute perennial or intermittent flow to navigable waters; or (c) are flooded by a “water of the United States” in a typical year)
  5. Impoundments (dam reservoirs, etc.)
  6. Adjacent Wetlands (includes wetlands that: (a) physically touch another “water of the United States”; or (b) is inundated by or receives or provides a perennial or intermittent flow from or to a “water of the United States” in a typical year, even if separated by a berm, levee, or are upland

The proposed definition also explicitly excludes certain water features from the WOTUS definition, including:

  1. Waters not included in the six proposed “waters of the United States” categories
  2. Ephemeral water features
  3. Ditches that do not meet the “Certain Ditches” criteria (includes most farm and roadside ditches)
  4. Prior converted cropland
  5. Stormwater control features (features excavated or constructed upland to convey, treat, infiltrate, or store stormwater run-off)
  6. Wastewater recycling structures (detention, retention and infiltration basins and ponds, and groundwater recharge basins where they are constructed in upland)
  7. Waste treatment systems (include all components, including lagoons and treatment ponds) designed to convey or retain, concentrate, settle, reduce or remove pollutants prior to any discharge)

How Can I Comment on the New Definition?

EPA and the Corps will take public comments on the proposed WOTUS definition for 60 days after publication in the Federal Register. Additionally, the agencies will: (1) hold an informational webcast on January 10, 2019; and (2) host a public listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

Comments on the proposal should be identified by Docket ID No. EPA-HQ-OW-2018-0149 and may be submitted online. Click here to view the EPA’s full public comment policy.

Useful Links

Prior Conduit Street Coverage of WOTUS Rule

NACo Article on new WOTUS definition (2018-12-11)

EPA WOTUS Rule Webpage

EPA & Corps Fact Sheet on Proposed WOTUS Definition

EPA & Corps Fact Sheet on Key Changes from the 2015 WOTUS Definition

Learn more about water issues that affect the Chesapeake Bay and Maryland’s Critical Areas at the MACo January 2019 Winter Conference.

Learn more about MACo’s Winter Conference:

 

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