A pre-publication copy of a new US EPA and US Army Corps of Engineers (USACE) proposal to re-codify the definition of “waters of the United States” (WOTUS) is now available. In it, EPA and USACE propose eliminating the revised definition for WOTUS finalized in June 2015
and continuing to enforce the Clean Water Act based on the pre-2015 definition.
to enforce” is the operative phrase here—the 2015 WOTUS definition took effect only briefly before being “blocked” nationwide by a US Court of Appeals in October 2016.
In March of this year, the President signed an Executive Order requiring a review of the WOTUS Final Rule.
That same month, EPA and the Army announced their intention to review the Final Rule.
What Is the Waters of the United States Final Rule?
How EPA defines “waters of the United States” is critical to enforcement of the nation’s water laws. This definition tells the regulated community which bodies of water—oceans, lakes, rivers, streams, creeks, swamps, and more—are subject to the requirements of the Clean Water Act.
The definition of WOTUS impacts the way EPA enforces a number of Clean Water Act programs: Oil spill notification (40 CFR 110), SPCC Plans (40 CFR 112), NPDES permitting and stormwater discharges (40 CFR 122), the per-industry standards at 40 CFR 405–471, and dredge and fill permitting (33 CFR 323). The 2015 revision to the definition of WOTUS
greatly expanded the number of bodies of water that could potentially be impacted by Clean Water Act rules.
Before the 2015 Final Rule, EPA enforced a more narrow interpretation of “navigable” waters with respect to the WOTUS definition. The President’s March EO requires EPA to adhere to that stricter definition of “navigable” as interpreted by Supreme Court Justice Anton Scalia in his opinion in the case Rapanos v. United States
In that opinion, Scalia references an 1870 Supreme Court Case, The Daniel Ball
, in which the court interpreted “navigable waters” to mean waters that are “navigable in fact or susceptible to being rendered so.” A pre-publication of the proposed Rule is available here.
What’s Next for WOTUS Watchers?
EPA has made it clear that restoring the previous definition of WOTUS is only their first step. Next, EPA will work to create a new definition of Waters of the United States to clarify for businesses and individuals which waters are protected under the Clean Water Act and which are not.
Whether another new WOTUS definition will be codified before the end of this presidential administration is anyone’s guess.
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