On December 11, 2018, the Environmental Protection Agency and the United States Army Corps of Engineers proposed a new definition of “waters of the United States” (WOTUS) and will soon publish the new definition in the Federal Register for a 60 day comment period. This is step two of the multi-step process that the Trump Administration has been following to reverse the Obama Administration’s efforts to come up with a new WOTUS rule.
What changed? Here is a short summary of the most obvious changes based on the EPA’s own description:
- Ephemeral Streams are no longer jurisdictional. The 2015 and pre-2015 rules definitely included ephemeral streams as jurisdictional even though they do not meet the statutory definition of a navigable water.
- Ditches with ephemeral flows are not jurisdictional. Ditches constructed in upland are not jurisdictional.
- Non-navigable lakes and ponds may not always be jurisdictional.
- Wetlands that do not abut jurisdictional waters or are separated by a berm, and lack a direct hydrological surface connection to jurisdictional waters in a “typical year” are not jurisdictional.
- Groundwater is not WOTUS and this change will delete the “nexus” that typically linked separate wetlands.
Are these material and important changes? Yes. Regardless of whether you are for or against an expansive view of WOTUS, these are real changes and definitely farmer-friendly. Given the current makeup of the United States Supreme Court I predict that the regulations will be easily upheld.
A copy of the pre-publication version of the rule is available here: https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf
James L. Pray