On February 20, 2018, the Environmental Protection Agency and the Department of the Army held a “WOTUS Outreach Webinar for State Partners” to discuss their direction and progress toward revising the jurisdictional definition of “waters of the United States.”
The Presentation included an overview of the rulemaking process, including federalism consultations, feedback from states, and a preliminary assessment of state authorities and programs that the agencies have prepared and plan to transmit to the states next week. The agencies discussed considerations for a proposed rule, including clarifications and definitions for tributaries, wetlands, and exclusions.
State comments regarding federal jurisdictional waters varied, including: (1) traditional navigable waters only; (2) permanent lakes, and perennial streams that contain water at all times except extreme drought; (3) perennial, intermittent, and ephemeral streams; (4) only wetlands that directly touch waters of the U.S.; and (5) wetlands within a set distance, that have a direct hydrologic connection, or tributaries that have a minimum level of flow. State feedback on exclusions also varied, with comments on groundwater, shallow subsurface flow, farm ponds, artificial drains, stock ponds, dip ponds for fire suppression, municipal storm sewer system features, irrigation ditches, roadside ditches, man-made ditches without perennial flow, ephemeral streams, wet meadows, sheet flow, drain tiles, dry arroyos, prairie potholes, and playa lakes.
In accordance with President Trump’s 28 February 2017 Executive Order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, EPA initiated a multifaceted federalism consultation process to obtain state and local government officials’ perspectives. EPA Administrator Scott Pruitt said they are “restoring states’ important role in the regulation of water,” and working “with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”
EPA is particularly interested in hearing from states regarding the impact of such a change and how states do or would regulate those waters excluded from federal jurisdiction, or “Waters of the State.”
EPA held several webinars to provide an overview of potential changes under consideration for the definition of “Waters of the U.S.” EPA and the U.S. Army Corps of Engineers plan to propose a new definition that would replace the approach in the 2015 Clean Water Rule with one that reflects the principles that Supreme Court Justice Antonin Scalia outlined in the Rapanos plurality opinion, indicating CWA jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.
Below are a few of the letters sent to EPA concerning the development of a new rule.