Revised Waters of the U.S. Rule Update
On December 28, 2018, the U.S. Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) published a revised Waters of the U.S. (“WOTUS”) to clarify the scope of waters federally regulated under the Clean Water Act (“CWA”). The proposed rule is open for a 60-day comment period. The proposed rule is intended to establish categorical bright lines that provide clarity and predictability for regulators and regulated community.
The revised definition interprets the term “the waters” to encompass relatively permanent flowing and standing waterbodies that are traditional navigable waters in their own right or that have a specific connection to traditional navigable waters, as well as wetlands abutting or having a direct hydrological surface connection to those waters, consistent with the plurality opinion in Rapanos v. United States.
The EPA and Corps also proposed a definition of “waters of the United States” to align with the intent of Congress to broadly interpret the term “navigable waters” beyond just commercially navigable-in-fact waters. “Waters of the United States” includes: traditional navigable waters, including territorial seas; tributaries of such waters; certain ditches; certain lakes and ponds; and impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters. Importantly, the proposed rule eliminates Justice Kennedy’s significant nexus test.
A public hearing was held on January 23, 2019 in Kansas City, Kansas for interested parties. Additional public hearings are scheduled for February 27 and 28 in Kansas City.
More information from EPA HERE.