New WOTUS Rule Clarifies the Scope of Federal Jurisdiction

December 13, 2018

The U.S. EPA and U.S. Army Corps of Engineers sent the long-awaited proposed rule defining what are  Waters of the U.S. (WOTUS), subject to federal jurisdiction under the Clean Water Act, to the Federal Register this week.  This rule would replace the 2015 WOTUS rule that was issued by the Obama Administration and has been subject to multiple lawsuits.

One of the first official regulatory actions taken by the Trump Administration was to direct the agencies through an Executive Order (E.O.) to repeal the 2015 WOTUS rule.  Goals for the new rule included to properly limit the scope of jurisdiction in light of recent Supreme Court decisions and to make it simpler and easier for the regulated community (including farmers) to understand and follow without having to hire outside consultants or lawyers.  The proposed rule, which should be published in the Federal Register in a few weeks, accomplishes the goals set out by the E.O.

EPA and Army Corps leadership signed the proposal in a ceremony attended by approximately 180 people at EPA Headquarters on December 11.

UEP will provide members with a detailed summary of the proposed WOTUS rule, but it includes:

  • Waters that are clearly in use for interstate commerce, with emphasis that the waters be “navigable-in-fact” as the courts have understood this term.
  • Tributaries of the above waters that flow permanently or seasonally (intermittently) in a typically wet year, where typical is defined by a 30-year rolling average of rainfall are WOTUS. Note that all ephemeral features that have water in them only after precipitation events are excluded.
  • Wetlands that are adjacent (actually touch and have a surface water connection) to the above waters and tributaries are WOTUS.  Note that this excludes isolated wetlands or wetlands that are physically separated from the above by either a man-made or natural feature that precludes a surface water connection.
  • Large ditches if they are essentially large canals, or if they are in a jurisdictional tributary or adjacent wetland are WOTUS.  All other ditches are exempt.
  • Lakes and ponds are WOTUS except if they do not function like jurisdictional tributaries, in which case they are excluded.
  • Any impoundments of the above jurisdictional waters are WOTUS.

The rule also provides a long list of types of features which are excluded by name, including prior converted cropland, ephemeral features (swales, waterways, gullies, rills) and artificially irrigated areas.

UEP issued a statement welcoming the rule.  Once published in the Federal Register, the public will have 60 days to comment.  UEP will be submitting comments in coordination with other agricultural organizations.