On December 11, 2018, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) proposed a revised definition for “waters of the United States,” intended to establish the scope of federal regulatory authority under the Clean Water Act in a more clear and understandable way. With the understanding that the federal role under the Clean Water Act is derived from Congress’ commerce power over navigation, the proposal attempts to limit “waters of the United States” under the Clean Water Act to those that are physically and meaningfully connected to traditional “navigable” waters.
Six (6) categories of waters that would be considered “waters of the United States” are described:
Continue reading “Waters of the US: A New Hope”
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.
Continue reading “Defining “Waters of the US” – A Continuing Saga”
The US Environmental Protection Agency (EPA) and Army Corps of Engineers are set to roll back the regulatory definition of “waters of the United States” according to a proposal published on June 27. The definition was amended under the controversial 2015 “Clean Water Rule”, which critics charged would extend federal regulatory protection to isolated ponds and wetlands, usually dry depressions with no conceivable connection to interstate waterways, even puddles formed in a heavy rain. The 2015 rule has been stayed since October of that year, so the definition previously in place has remained in effect. This proposed rule will re-codify the previous definition as it existed prior to the 2015 rulemaking.
Continue reading “Rolling Back the Definition of “Waters of the US”: Good Move or Bad?”