Woe is Me: EPA Seeks Help Defining WOTUS

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (ACE) are seeking recommendations from stakeholders and the public in their effort to revise the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). The definition and interpretation of WOTUS is critical as it defines the federal government’s regulatory reach (and limits) when it comes to the country’s waterways.

On February 28, 2017, President Trump signed an executive order that directed EPA to review the Obama administration’s “Clean Water Rule,” which at the time redefined the meaning of WOTUS and ultimately enlarged the scope of what waterbodies would and could be regulated under the CWA. President Trump’s 2017 Executive Order called for a more business-friendly rule that would be more restrictive on the federal government.

The Clean Water Rule under the Obama administration vastly expanded the definition of WOTUS to include, for instance, the ability to regulate property that contained streams that only contained water after a heavy precipitation and even ditches on properties if water on occasion flowed into them.

In sum, the Clean Water Rule greatly increased the federal government’s jurisdiction and regulatory reach to cover land owners, such as farmers and ranchers whose properties were not regulated under the CWA in the past, but would be now. Many property owners facing regulation felt the federal government was overreaching and essentially regulating land — not navigable waterways — under the guise of the CWA.

Individuals opposed to the Clean Water Rule argued that it also made it more difficult for property developers, property owners, miners, and oil and natural gas drillers to operate due to the uncertainty imposed as to whether the property was in fact subject to federal regulation and control.

Many in the regulated industry saw the Clean Water Rule as a massive federal overreach and power grab that served only to stifle business and hamper economic opportunity. The Obama-era rule was further criticized by the regulated industry as vague and requiring a long permitting process for everyday business activities.

Conversely, President Trump’s executive order calls for EPA and ACE to interpret WOTUS in line with a 2006 opinion written by the late Supreme Court Justice Antonin Scalia, which would limit jurisdiction of the CWA to permanent waters and wetlands with a continuous surface connection to relatively permanent waters.

In July 2017, EPA and ACE formally proposed to repeal the Clean Water Rule: “EPA is committed to an open and transparent process for reviewing the definition of WOTUS” said EPA Administrator Scott Pruitt. “Receiving input from across the country will help us make informed decisions as we move through our two-step process that will return power to the states and to provide regulatory certainty to our nation’s farmers and businesses.”

EPA and ACE have therefore scheduled 10 two-hour teleconferences to be held from September 19, 2017 through November 21, 2017 by stakeholder interest:

  • September 19, 2017 – small entities (small businesses, small organizations and small governmental jurisdictions);
  • September 26, 2017 – environment and public advocacy;
  • October 3, 2017 – conservation, e.g., hunters and anglers;
  • October 10, 2017 – construction and transportation;
  • October 17, 2017 – agriculture;
  • October 24, 2017 – industry;
  • October 31, 2017 – mining;
  • November 7, 2017 – scientific organizations and academia;
  • November 14, 2017 – stormwater, wastewater management and drinking water agencies; and
  • November 21, 2017 – general public.

Registration for oral recommendations during the teleconference are on a first-come, first-served basis and each speaker will be limited to three minutes.

Given the political climate and the different direction that the new Administration is taking EPA as it relates to the regulation of WOTUS, we expect to hear enthusiastic cheers at the upcoming teleconferences from certain stakeholders as well as equally impassioned jeers. We’ll be certain to report back any pertinent information that stems from this stakeholder outreach and listening tour by EPA.

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