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EPA & USACE propose revised rule for waters of the United States
Alan Bailey for Petroleum News
On Nov. 11 the Environmental Protection Agency and the US Department of the Army, Corps of Engineers, published a proposed new version of the rule that defines the waters of the United States, or WOTUS. The agency said that the new version, which has been published in the Federal Register for review, would establish a clear, durable, common-sense WOTUS definition.
EPA Administrator Lee Zeldin said that the proposal reflects a promise by President Trump to finalize a revised WOTUS definition.
Bone of contention The WOTUS definition has long been a bone of contention, given that it determines which waters in the United States come under the jurisdiction of the federal government rather than states or local authorities.
While certain waterways such as navigable waters that can be used for interstate transportation clearly fall under federal jurisdiction, contention arises when evaluating the potential environmental impacts of waters that connect in some way with these unambiguous WOTUS water bodies.
What, for example, about wetlands, lakes and ponds that might transmit pollutants to navigable waters?
This is a critically important issue for Alaska, given the state's myriad of waterways, lakes and wetlands. While activities impacting WOTUS areas require federal permits, the Alaska Department of Environmental Conservation conducts environmental permitting for state waterbodies and wetlands.
Supreme Court ruling In May 2023 the U.S. Supreme Court issued a ruling in a long standing WOTUS related legal case referred to as Sackett v. Environmental Protection Agency. The ruling narrowed the scope of the WOTUS definition, thus reducing the scope of wetlands that can be regulated by the federal government. The federal agencies had been using a WOTUS definition that included wetlands with a "significant nexus" to unambiguous U.S. waters. The Supreme Court ruled that only wetlands that are indistinguishable from waters of the United States because of a continuous surface connection can be viewed as part of WOTUS.
Later in 2023 EPA and USDA under the Biden administration announced a final rule changing the WOTUS definition, to comply with the Supreme Court ruling.
Input from multiple sources In their Nov. 11 announcement the agencies said that the new proposed rule uses input from multiple sources and further supports the 2023 Supreme Court decision.
Sources for the proposal included a pre-proposal recommendations docket, information from nine public listening sessions, and consultation comments from states, tribes and local governments.
The agencies say that the proposed rule will "strengthen state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources."
Key revisions Key proposed revisions to the WOTUS definition include defining concepts such as relatively permanent water bodies, a continuous surface connection and a tributary water body.
Under the proposed rule a tributary subject to federal jurisdiction must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow. And federally regulated wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection.
The proposed rule also includes definitions that further limit the scope of permafrost wetlands that are considered to have continuous connections to federally regulated water bodies.
"When it comes to the definition of 'waters of the United States,' EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity," Zeldin said. "Democrat administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families. We heard from Americans across the country who want clean water and a clear rule. No longer should America's landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a water of the United States is on their property."
- ALAN BAILEY
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