On December 11th, the Environmental Protection Agency (EPA) and the Army Corps of Engineers announced a sweeping change to the 2015 Waters of the United States (WOTUS) rule that deemed all bodies of water “navigable water.”
Per the official announcement, this rule change would provide “clarity, predictability and consistency” to the Clean Water Act for where it applies and doesn’t apply. In 2015, then-President Obama’s EPA deemed all bodies of water—including puddles and ditches— as “navigable waters” subject to regulation under the WOTUS rule.
Here’s what would be considered “navigable waters” under the new rule change:
Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.
This proposal on rule changes would also give more credence to existing state and tribe regulations that apply to bodies of water in the confines of their borders, regardless if they are so-called “waters of the United States.” The agencies’ proposal also permits “states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act.”
The rule change will clarify—not eliminate—the WOTUS rule emanating from the Clean Water Act.