Proposed New Definition of “Waters of the United States”

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The EPA and Department of the Army submitted their revised proposal to amend the definition of “waters of the United States” for purposes of establishing federal jurisdiction under the Clean Water Act.

The public comment period on the revised proposal has opened and will close on April 15, 2019. The agencies will host a two-day public hearing on February 27 and 28, 2019. It appears the agencies intend to finalize the new rule this year. The proposed waters of the United States (WOTUS) rule is a result of the February 2017 presidential Executive Order that directed the agencies to review and revise federal CWA jurisdiction.

Most significantly, the new WOTUS rule would eliminate the “significant nexus” test, which has created substantial uncertainty for federal courts and regulated entities. Circuit courts are split on what rules to apply, and landowners are left guessing whether the CWA would apply to their property. The existing 2015 WOTUS rule offers little guidance, with regulators required to make “a case-specific showing of their significant nexus to traditionally covered waters” whenever there is any question. Litigation over the existing 2015 WOTUS rule continues in multiple courts across the country.

The new proposal would replace the “significant nexus” test with six categories of waters subject to federal jurisdiction while delineating specific waters that are not. Under the proposed WOTUS rule, bodies of water such as “ephemeral” streams (in which water runs only during or after rainfall), groundwater, and wetlands that are not adjacent to other jurisdictional waters would no longer be regulated by the CWA. These changes would be a boon to many rural landowners who have been swept up into the existing regulations, though environmentalists have already raised alarm at the effect the proposed rule would have on federal regulation of wetlands. Even if the new WOTUS rule is approved by the agencies this year, there will certainly be fierce litigation over its scope and force.

(Originally published in the February 2019 edition of the Alston & Bird Environmental & Land Use Briefing.)