EPA Unveils New WOTUS Definition

To rewrite an Obama-era regulation defining which waters fall within the jurisdiction of the Clean Water Act, the Trump administration proposed a new definition for Waters of the United States (WOTUS) in a news conference on December 11.

The Obama-era WOTUS rule has been embroiled in litigation since it was proposed, as some representing various industries argued it placed too many restrictions on development, while some states were concerned the rule expanded federal jurisdiction to areas that were state responsibilities.

The U.S. Environmental Protection Agency is proposing removing federal oversight of 51% of wetlands and 18% of streams. Removing federal protection of these bodies has the potential to put groundwater resources at risk that are hydrologically connected to streams and wetlands. However, it may also remove barriers to residential, commercial, and agricultural development, thereby stimulating demand for wells.

The Trump administration proposal outlines Clean Water Act protection for six types of aquatic resources: traditionally navigable waters, tributaries, impoundments, wetlands adjacent to traditionally navigable waters, some ditches, and some lakes and ponds. In both the Obama-era rule, and the Trump rewrite, groundwater is largely excluded because WOTUS applies to those waters that are, or could be, “navigable.”

Another key similarity between the two versions is the Trump administration’s proposed definition will likely remain in the court system for quite some time, as legal challenges from environmental groups are expected.