Defining “Waters of the US” – A Continuing Saga

(photo: isolated pond in wooded area)

On July 12, the US Environmental Protection Agency (EPA) and the Army Corps of Engineers continued the seemingly interminable project to construct a working, regulatory definition of “Waters of the United States” (or, WOTUS) for various environmental regulatory programs administered under Title 40 of the Code of Federal Regulations (CFR). This “supplemental notice of proposed rulemaking” purports “to clarify, supplement and seek additional comment” on the July 2017 proposal to repeal the 2015 Rule Defining Waters of the United States” which amended previously existing sections of the CFR that the 2015 Rule sought, well, to clarify.

The current proposal, if finalized, will repeal the 2015 Rule and restore the text that existed before publication of the 2015 Rule, “as informed by guidance in effect at that time.” EPA has previously (February 2018) published a rule extending the applicability date of the 2015 Rule to February 2020, and implementation of the 2015 Rule has been stayed by judicial proceedings, so in effect we’ve been working with the preexisting text, informed by EPA’s prior guidance, since that time.

Meanwhile, whether groundwater can ever be considered “Waters of the US” under whatever rules are in place continues to be a hot topic.

Under its February rulemaking, EPA requested comment on its “previous statements” regarding whether point source pollutant discharges to groundwater are subject to regulation under the Clean Water Act (CWA) if the groundwater has a hydrologic connection to Waters of the US. The “previous statements,” which presumably would be considered “guidance in effect at that time” under the current rulemaking, concluded that point-source discharges to groundwater that flows into jurisdictional waters are in fact regulated under CWA (in particular, that these discharges would be subject to the National Pollutant Discharge Elimination System, or NPDES, permitting requirements).

If we’re being honest, it’s unclear where this rulemaking will lead, except that one can expect further legal challenges regardless of the fate of the WOTUS definition. Plenty of discussion, information and guidance can be found on the following pages, should you wish to offer an opinion before the end of the public comment period on August 13.

Rule Docket and Commenting:

EPA webpage:

US Army Corp CWA Guidance: