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Redefining Water: New Proposed Rule for Waters of the United States

The Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) have proposed a revised definition of “waters of the United States” that is intended to clarify, streamline and limit which waters are subject to federal regulations.

Specifically, the proposal would clarify which waterways in the United States are subject to the Clean Water Act’s[1] jurisdiction. This addresses President Trump’s February 2017 executive order directing the EPA and USACE to repeal and replace the 2015 Clean Water Rule[2].

The Obama administration’s 2015 Clean Water Rule defined “waters of the United States” as interstate waters, territorial seas, impoundments of jurisdictional waters, covered tributaries and covered adjacent waters. Critics of the 2015 Clean Water Rule have asserted that it unnecessarily burdened landowners and has contributed to confusion regarding which waters are subject to the jurisdiction of the Clean Water Act.

On December 11, 2018, EPA Acting Administrator Andrew Wheeler said that the 2015 Clean Water Rule increased the need for landowners to apply for federal permits, and that the current proposal “would replace the 2015 definition with one that respects the rule of law and the primary role of states in managing their land and water resources. It would end years of uncertainty over where federal jurisdiction begins and ends.” The EPA has taken the position that local entities should regain control over the lands and waters in their jurisdictions.

While the Trump administration asserts that the new proposal will benefit landowners and reduce confusion, significant criticism is expected. Critics have already voiced concern that the new proposal will eliminate the 2015 Clean Water Rule’s protections of wetlands and ephemeral waters as “waters of the United States.” Additionally, the New Jersey Department of Environmental Protection Commissioner Catherine R. McCabe took significant issue with the new proposal, stating that “the Trump administration’s proposal to roll back federal rules on clean water abandons our moral obligation to protect the environment for our children and grandchildren. It creates a ‘race to the bottom,’ encouraging states to loosen their own regulations and penalizing those that truly protect their residents and public health.”

A notification of public hearing was issued in the Federal Register on December 28, 2018; however, due to the lapse in appropriations for the EPA, the planned January 23, 2019 public hearing has been postponed. Publication of the proposed rule in the Federal Register has similarly been postponed. The 60-day public comment period will commence after the publication of the proposed rule in the Federal Register.

[1] 33 U.S.C. § 1251 et seq.

[2] 80 Fed. Reg. 37053

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