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New Waters of the United States Rule Proposed


The U.S. Environmental Protection Agency (EPA) and the Department of the Army are proposing what they call "a clear, understandable, and implementable definition of 'waters of the United States' that clarifies federal authority under the Clean Water Act." 

The proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth and reduce barriers to business development, EPA stated.

“Our proposal would replace the 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,” said EPA Acting Administrator Andrew Wheeler. “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.”  

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States,” consistent with President Trump's February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Executive Order states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation's waters.”

Under the agencies’ 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.

“We are pleased that EPA listened as NSSGA advocated that dry streambeds and isolated waters should not be federally regulated under the Clean Water Act,” said National Stone, Sand and Gravel Association (NSSGA) President and CEO Michael W. Johnson. “We strongly support the administration’s effort to improve rules, such as WOTUS, that have had direct impact on the availability and costs of materials needed for vital infrastructure projects. NSSGA members work diligently to protect the environment, but they need regulatory clarity to do so. We are preparing comments on this rule and look forward to continued work with the administration to refine burdensome regulations.”

The chief executive officer of the Associated General Contractors of America, Stephen E. Sandherr, commented, "The newly proposed clean water rule outlines clear and specific guidelines as to which sites require a federal water permit in addition to state and local water permits, and what needs to be done to protect federally permitted waters. As a result, the new measure will enable contractors for all types of construction projects, from schools to local roadways and other infrastructure, to understand which permits they need and proceed without substantial regulatory delay and additional cost. 

"The new proposal will provide the environmental protections the nation's waterways deserve with the clarity needed to ensure full compliance. In other words, the new rule will keep waters clean by making the rules clear. We look forward to working with federal officials to ensure the completion and implementation of this new clean water rule," he concluded.