New WOTUS definition clarifies waterbodies requiring CWA permits
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Alan Bailey Petroleum News
The U.S. Environmental Protection Agency and the Department of the Army have published a proposed new specification of the waters of the United States, a specification that they say will bring clarity to what waterbodies are subject to federal regulation under the terms of the Clean Water Act. The new proposal will go through a public comment period.
The WOTUS definition is of critical importance in the permitting of projects that impact wetlands and waterways, because the definition determines which projects become subject to federal jurisdiction and federal permitting. The definition tends to be controversial because it raises issues regarding the extent of federal jurisdiction within states and the relative rights of federal, state and tribal authorities to manage lands within the borders of the United States. The situation is particularly touchy in Alaska because of the state’s myriad rivers, streams, lakes and wetlands.
Simple in principle, complex in practice Federal jurisdiction over waterways is simple in principle in that most people agree that the federal government can regulate navigable waters that are capable of supporting interstate commerce. But where do the waters of the U.S. end and local or state waters begin? Water flowing into those more obvious U.S. waters can carry contaminants from other waterbodies that are less clearly federal.
In 2015 the Obama administration introduced a controversial new WOTUS rule that made tributaries to the more obvious U.S. water bodies, as well as wetlands adjacent to these tributaries and navigable waters impounded behind dams, all subject to federal jurisdiction. The Trump administration now says that its new rule will bring needed clarity to the WOTUS definition. The new rule will place limits on waterways subject to federal jurisdiction, giving states and tribes more flexibility to manage waters within their borders, the agencies say.
Scope of the new definition The new WOTUS definition continues to encompass traditional navigable waters, including large rivers, large lakes, tidal waters and territorial seas. Added to this would be tributaries flowing into these waters, either directly or via some other tributary. These tributaries are naturally flowing waterways that flow more than just when it rains.
A ditch, defined as an artificial channel used to convey water, would be subject to federal jurisdiction if it is a traditional navigable water, such as a navigable canal, or if it is subject to the ebb and flow of the tide. A ditch may also be jurisdictional if it fits within the definition of a tributary, or if it is built in a tributary or adjacent wetland.
Certain lakes and ponds would be considered WOTUS if they form traditional navigable waterways, if they contribute to the flow of water through a traditional navigable waterway, or if they are commonly flooded by a water of the United States. Water impoundments, presumably constrained by dams, would also be considered WOTUS.
Some wetlands would be viewed as jurisdictional, if they connect in certain ways to WOTUS waterbodies.
The WOTUS definition also includes a list of waterbodies that would not be considered jurisdictional. These include groundwater, certain stormwater control features, wastewater recycling structures and waste treatment systems.
Praise from delegation Alaska’s U.S. senators have praised the federal administration’s efforts to bring clarity to the WOTUS confusion.
“This is a big deal for Alaska that should help end years of concern, frustration, and uncertainty over a costly regulation that would have halted construction projects and other economic opportunities,” said Sen. Lisa Murkowski. “This new proposal will protect water quality while providing clarity on the scope of regulation and restoring balance to the state and federal relationship. I look forward to working with EPA and the Army Corps to make sure it is effective and workable for Alaskans.”
“I welcome the EPA’s long awaited proposal to restore power to states and protect land owners - and hardworking Alaskans - from the confusing and burdensome federal overreach of the last administration’s WOTUS rule,” said Sen. Dan Sullivan. “If a landowner or a farmer has to hire a lawyer for months of work against an impenetrable and glacial bureaucracy - at the cost of thousands of dollars - just to understand whether they can fill in a ditch or build a structure, it doesn’t take a genius to figure out that doesn’t work, especially in Alaska. The EPA’s proposal offers a path for a more reasonable, statutory based interpretation of the Clean Water Act.”
- ALAN BAILEY
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