EPA and the Army Corps of Engineers Issued a Federal Register Supplemental Notice of Proposed Rulemaking (SNPRM) addressing protective status of Waters of the United States (WOTUS). The action is intended to clarify provisions in, and repeal, an Obama-era rulemaking that defined what water bodies would be covered by provisions in the Clean Water Act. Supreme Court precedents involving several key cases are cited, and special emphasis is placed on Justice Scalia’s opinion (but also on plurality opinions) in the Rapanos v. United States (2006) case. This SNPRM modifies the existing WOTUS policy and definitions that affect whether private lands are protected under state or federal protected waters status.
The 2 Agencies are providing interested parties a 60-day opportunity to submit comments on the proposed rule once it is officially published in the Federal Register. The agencies will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019, (NOTE- the USCM Winter Meeting starts on January 23, 2019).
EPA STATEMENTS
EPA Acting Administrator Andrew Wheeler states:
• “Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies.”
• “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”
This proposed rule “…does not view the definition of “waters of the United States” as conclusively determining which of the nation’s waters warrant environmental protection; rather, the agencies interpret the definition as drawing the boundary between those waters subject to federal requirements under the CWA and those waters that States and Tribes are free to manage under their independent authorities. The agencies are proposing this line-drawing based primarily on their interpretation of the language, structure, and legislative history of the statute and the policy choices of the executive branch agencies.”
Some key areas of the pre-publication draft rule that will be published soon in the Federal Register include:
Proposed definitions start at p. 59.
A summary of 2015 v. 2018 rule proposals starts on p. 154.
One of the strong points of the proposal is that it more clearly defines what land is subject to regulation by the federal government as a protected water, and what lands are left to the discretion of the states to regulate.
Non-navigable ditches and wastewater treatment facilities will not be considered a waters of the United States.
The EPA announced on December 10, 2018 in a webinar that they are proposing to use six categories of regulatory applicability (see below) that will allow any landowner to determine if their land is subject to federal or to state/tribal regulation. A most critical point is that the EPA is rejecting using groundwater as the criterion to determine if a land is subject to federal regulations. This approach is intended to provide certainty and is an improvement over the existing 2015 rule in our opinion.
If your city does submit comments or if you have any questions, please contact Judy Sheahan (jsheahan@usmayors.org) or Rich Anderson (randerson@usmayors.org) of my staff.
Category — Is It a Water of the United States
A. Traditional Navigable Waters and Territorial Seas — Yes
B. Interstate Waters – Yes
C. Impoundments —
Yes – if there is a surface water connection to navigable water
No- if there is no surface water connection to a navigable water
D. Tributaries —
Yes – if the tributary flows into a navigable water
E. Ditches —
Yes – if there is a surface water connection to navigable waters
No- if there is no surface water connection to a navigable water
F. Lakes and Ponds —
Yes – if there is a surface water connection to navigable waters
No- if there is no surface water connection to a navigable water
G. Wetlands —
Yes – if abutting a tributary with a surface water flow to a navigable water
No- if there is no surface water connection to a navigable water