Public Comment Period Now Open on Proposed Rule Revising Definition of “Waters of the United States

Environmental Alert

(by Lisa M. Bruderly and Gary E. Steinbauer)

On February 14, 2019, the U.S. Environmental Protection Agency and Army Corps of Engineers’ proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA) was published in the Federal Register.  The publication begins a 60-day public comment period, which ends on April 15, 2019, and comes more than two months after the Agencies released the proposed revised definition of WOTUS to the public on December 11, 2018.  A detailed description of the proposed revised definition of WOTUS was covered in our previous Environmental Alert.

The Agencies are seeking comments on all aspects of their proposal, including the six categories of waters that would categorically be considered to be WOTUS, the 11 categories of waters or features that would not be considered to be WOTUS, and the newly proposed definitions of the terminology referenced in the proposal, such as “tributary” and “adjacent wetland.”  In addition, the Agencies have specifically requested comments on the following issues:

  • Whether the “significant nexus” test must be a component of the proposed new definition of WOTUS.
  • Whether the definition of “tributary” should be limited to perennial waters only and not those with intermittent flows.
  • Whether “effluent-dependent streams” should be included in the definition of “tributary.”
  • Whether the jurisdictional cut-off for “adjacent wetlands” should be within the wetland or at the wetland’s outer limits.
  • Whether a ditch can be both a “point source” and a WOTUS under the CWA.
  • Whether the Agencies should work with states to develop, and make publicly available, state-of-the-art geospatial data tools that could be used to identify the locations of WOTUS.
  • The appropriate field methodologies for identifying perennial or intermittent flow and navigability.

The proposed new definition of WOTUS would replace the 2015 Clean Water Rule (CWR) definition.  As compared with the CWR, the proposed new definition of WOTUS would substantially narrow the scope of the federal government’s jurisdiction under the CWA.  The proposed new definition of WOTUS is of particular importance to affected industries and municipalities in Pennsylvania and Ohio and the other 20 states where the CWR’s more expansive definition of WOTUS currently is in effect.

Babst Calland is actively monitoring this rulemaking and evaluating its potential effect across sectors and industries.  If you have questions about the proposed rule or comment procedures, please contact Lisa M. Bruderly at (412) 394-6495 or lbruderly@babstcalland.com or Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com.

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