On Jan. 23, 2020, EPA and the Army Corps of Engineers
unveiled the Trump administration’s revised “Waters of the U.S. (WOTUS)”
rule. The new definition of federally protected water bodies is far
narrower than the 2015 Obama administration rule which dramatically expanded
the reach of federal jurisdiction over rivers, streams and wetlands and in turn
the scope of waters where NPDES permitting applies, including aerial
application of pesticides. NAAA was among thousands of stakeholders that
submitted comments in 2017 in support of repealing the 2015 Rule.
In September 2019, EPA and Corps announced the repeal of the
2015 rule, now replaced by the new definitions. The new rule, 340 pages long,
states that:
This final rule implements the overall objective of the
Clean Water Act to restore and maintain the integrity of the nation’s waters by
maintaining federal authority over those waters that Congress determined should
be regulated by the Federal government under its Commerce Clause powers, while
adhering to Congress’ policy directive to preserve States’ primary authority
over land and water resources. This final definition increases the
predictability and consistency of Clean Water Act programs by clarifying the
scope of “waters of the United States” federally regulated under the Act.
The new definition of federally protected water bodies is
far narrower than the Obama administration’s version, as it excludes isolated
wetlands and ephemeral streams that only flow after a heavy rainfall.
In light of earlier Supreme Court opinions, the key point of
dispute among stakeholders is how the agencies should deem a marginal water
body federally protected if there is a “significant nexus” between it and
another larger body of water that is clearly protected.
Litigation over the new rule, especially the interpretation
of “significant nexus,” is expected to be filed by stakeholders who support the
earlier EPA definitions contained in the 2015 rule.
The rule will be effective 60 days after its publication in the Federal Register.