On March 25, 2014, the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers (collectively “the agencies”) issued a joint press release announcing the release of a proposed rule titled Definition of “Waters of the United States” Under the Clean Water Act. The rule is commonly referred to as the “WOTUS rule,” based on an acronym for waters of the United States.
The agencies assert that the new definition of waters of the United States is necessary to bring clarity and certainty to the process of identifying jurisdictional waters due to ambiguities arising from a number of U.S. Supreme Court decisions. The agencies rely upon two documents in support of the rule: a Draft Report on Connectivity of Streams and Wetlands to Downstream Waters (the “Connectivity Report”) and an Economic Analysis of Proposed Revised Definition of Waters of the United States (the “Economic Analysis”).
The proposed definition reaffirms a small number of narrow exemptions but significantly expands the jurisdictional reach of the agencies, relying on a very broad interpretation of how surface waters may be physically, chemically, or biologically interrelated to one another. The rule as proposed on March 25th is a pre-publication version and has not been published in the Federal Register. The unofficial draft is available here. Comments will be accepted for a period of 90 days from the date of publication in the Federal Register.
For additional information contact Winston Borkowski.