On December 11, the U.S. EPA and the Army Corps of Engineers proposed a new Waters of the U.S. (WOTUS) definition. The proposal is the administration’s attempt to replace an Obama-era rule to better define waters of the U.S., or WOTUS, which are subject to Clean Water Act requirements and would redefine which bodies of water are covered by federal regulations. The range of waterways subject to federal pollution regulations would be narrower, but the Trump administration said it did not know the on-the-ground impact.

Acting Administrator of the EPA Andrew Wheeler said his primary goal in crafting this new proposal was to make it easier for a landowner to tell whether a federally protected waterway is on their property and therefore subject to permitting requirements if it is disturbed.

The 2015 WOTUS rule crafted by the Obama Administration took a broad view of which waters are covered, while the Trump administration takes a much narrower approach.  Rivers, lakes, and estuaries would still be protected under the proposal (RIN:2040-AF75), while isolated ponds and wetlands that don’t connect to larger bodies of water would not.  What’s less clear is the status for so-called “intermittent streams” that only flow during some parts of the year.

EPA’s Assistant Administrator of the Office of Water David Ross, said the agency had developed a new way to determine whether these streams are eligible for federal protection. If a stream regularly flows into a larger body of water in “a typical year,” that stream is in, he told reporters.

Now that the proposal is out, the Trump administration will accept public comments for 60 days. It will then have to undergo the time-consuming process of analyzing those comments before it can be issued as a final rule.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register.  Once the public comment period opens, the public is encouraged to submit written comments, identified by Docket ID No. EPA-HQ-OW-2018-0149, to the Federal eRulemaking Portal: https://www.regulations.gov. General guidance on making effective comments is available at EPA's Commenting on EPA Dockets.  ((Bloomberg BNA, 12/11/18)

Click here to read EPA’s press release.

Click here to read a copy of the proposed rule.

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Claudio Ternieden
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