In a long anticipated move, on Tuesday December 11, 2018 the U.S. Environmental Protection Agency (EPA) proposed further revisions to the federal Clean Water Act’s definition of “waters of the United States,” (WOTUS), clawing back the number of waterways subject to federal protection that was expanded greatly during the Obama Administration and has been subject to long-enduring litigation across the nation.
Under EPA’s proposal, the only wetlands that would be subject to federal jurisdiction would be those adjacent to a major body of water, or those that are connected to a major waterway by surface water. EPA maintains that its proposal would be clearer and easier to understand than prior iterations and would facilitate a better understanding by landowners and developers in anticipating whether proposed actions would trigger federal permit requirements.
Given the great expanse of pending litigation, the Obama Administration’s 2015 Clean Water Rule is currently effective in 22 states, the District of Columbia, and the U.S. territories, and previous regulations, issued in the 1980s, are in effect in the other 28 states, including Arizona, Colorado, Nevada, and Utah.
In its proposal, EPA maintains that final approval would provide states and tribes more flexibility to manage waters within their borders, something many western states desire due to the presence of numerous ephemeral waterbodies, which under the newest proposal would be specifically exempt from regulation.
EPA and the U.S. Army Corps of Engineers is seeking comment for 60 days after publication in the Federal Register. In addition, the agencies will host an informational webcast on January 10, 2019, and a public listening session on the proposed rule in Kansas City, KS, on January 23, 2019. Additional information may be found at https://www.epa.gov/wotus-rule.