This week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) released their much anticipated proposal to revise the definition of “Waters of the U.S.” (WOTUS) that describes the waters and wetlands subject to federal Clean Water Act (CWA) jurisdiction and its respective permitting programs. CWA jurisdiction is an important issue for aerial applicators because a National Pollutant Discharge Elimination System (NPDES) Pesticide General Permit (PGP) is required to operate for pesticide spraying into, over, or near a WOTUS. NAAA applauds EPA/Corps for taking this critical step to correct the 2015 Obama-era WOTUS rule’s federal overreach, ambiguities and regulatory uncertainty.

The 2018 proposed WOTUS definition includes more bright lines that will make it easier for aerial applicators and their landowner customers to determine which water features are WOTUS and thus require CWA permitting, including NPDES permitting for aerial spraying. The 2018 proposal also eliminates case-by-case “significant nexus” analyses that require costly technical expertise and leave too much room for subjectivity, inconsistency and regulatory uncertainty. Among the 2018 proposal’s key improvements is the exclusion of ephemeral water features from CWA jurisdictions. Ephemeral features only contain water in response to rain or snow melt and in many cases may be dry all but a few brief times a year, making it difficult for landowners and applicators to recognize them as a water feature let alone a WOTUS.