The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) have issued a proposed new definition of Waters of the United States (WOTUS) under the Clean Water Act. A pre-publication copy of the proposed rule is available at epa.gov. The proposed rule replaces the Obama Administration's WOTUS rule which many business groups opposed on the basis that it gave the federal government power over broad areas of land.
The proposed rule appears to limit the Clean Water Act jurisdiction for waters of the U.S. and define the difference between federally protected waterways and state protected waterways. Under the new proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not "waters of the United States," such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.
The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army 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.
KERAMIDA’s Anastasia Kyrmanidou, Ph.D. will participate in EPA’s Jan. 10 webcast and follow up with an analysis of the proposed rule.