WOTUS Rule Redefined by EPA and Army Corps

On Tuesday, December 11, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) announced the soon to be released updated definition of “waters of the United States” (WOTUS) that clarifies federal authority under the Clean Water Act.

This new proposal covers six types of aquatic resources: traditionally navigable waters, tributaries, impoundments, wetlands adjacent to traditionally navigable waters, some ditches, and some lakes and ponds. The proposal covers streams and creeks that flow year-round or intermittently into larger downstream waters, including navigable waters and other tributaries to them. A fact sheet about this new proposal can be reviewed and downloaded by clicking here.

Specifically, the new definition would apply to intermittent or perennial streams that contribute flow to navigable waters in a “typical year,” meaning over a rolling 30-year average, said EPA Office of Water chief David Ross. Ephemeral streams that flow only after heavy rains or during snowmelt would not be covered under the proposal.

Once today’s proposal is printed in the Federal Register, the public will have 60 days to comment. EPA and the Army Corps will then have to review and address the comments before issuing a final rule, which will almost certainly face a legal challenge from environmental groups.

Stream + Wetlands Foundation continues to monitor all activities surrounding the WOTUS rule development. We are hopeful a reasonable WOTUS definition can be achieved soon to help improve predictability for permit applicants and the regulatory agencies.