On November 16, 2017 the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers (Agencies) proposed to amend the effective date of the 2015 Clean Water Rule (commonly known as the WOTUS Rule) defining the “waters of the US”. The proposal is to delay the effective date of the Rule until 2020 giving the agencies time to reconsider and revise the definition. The WOTUS Rule, which was originally slated to come into effect in August 2017, was adopted by the Agencies under the Obama administration in a 2015 Rule titled “Clean Water Rule: Definition of Waters of the United States”. In June 2017, the Agencies proposed to rescind the WOTUS Rule following an executive order under the Trump Administration to review and revise the definition of the “waters of the US”.
The WOTUS Rule affords federal protection for about 22 million acres of wetlands and over two million miles of watercourses within the contiguous United States. Based on the expansive inclusion of wetlands and waterbodies under the umbrella of the federal government, the Rule triggers the need for federal permits for any activities affecting such “jurisdictional waters”. More importantly, the Rule is a technical document that addresses long-standing ambiguity in the Clean Water Act regarding the definition of rivers, streams and wetlands that fall under the authority of the federal government.
So, what implications do these proposed Rule changes have to projects across the energy, transportation, infrastructure and agricultural sectors? For now, very little. Technically speaking, the definition of “waters of the US” currently in effect was enforced in 1986/1988 along with guidance issued by the Agencies in June 2007. Until such time as a new definition of the “waters of the US” comes into effect, business will be as usual. Or so it may seem….
Here is a useful up-to-date Synopsis of Clean Water Act Jurisdiction Developments
If you have any questions on WOTUS, please contact Anjali Karve.