The proposed rule provides a clear definition of the federal government’s jurisdiction over bodies of water.
Small businesses and property owners may have more certainty when it comes to navigating Clean Water Act jurisdictional issues over private property, thanks to a proposed revision to the Waters of the United States (WOTUS) definition.
The highly controversial 2015 WOTUS rule expanded the definition of “waters of the United States” under the Clean Water Act, giving the federal government jurisdiction over seasonal streams, ponds, ditches, and even depressions fields that are dry through most of the year. It also subjected business owners to fines of over to $50,000 per day. NFIB has strongly opposed WOTUS since it was first proposed in April 2014 and filed a lawsuit against the Environmental Protection Agency (EPA) in July 2015.
The EPA and the Department of the Army released a proposed revision to the WOTUS definition on Dec. 11. It provides a clear and consistent understanding of which waters fall under the federal government’s authority under the Clean Water Act and which do not.
Traditional navigable waters, such as rivers and interconnected canals and lakes will remain subject to Clean Water Act regulation, as will “tributaries.” But the newly proposed rule would more narrowly construe Clean Water Act jurisdiction in its definition of “tributaries.” Whereas the 2015 WOTUS Rule defined tributaries broadly to cover any land for which there is even occasional waterflow as a result of a storm, the newly proposed definition would exclude dry creeks, ditches, and anything else unless there is significant waterflow for at least one season a year.
Therefore, the new rule allows for regulation of wetlands only if they are adjacent to and share a continuous surface connection with traditional navigable waters. And in addition to excluding features that only contain water during or in response to rainfall, the proposed rule excludes groundwater, many ditches, including most roadside or farm ditches, prior converted cropland, stormwater control features, and waste treatment systems.
The rule will not be final until the EPA reviews and considers the comments on the proposed rule and makes any changes it deems appropriate. A final rule isn’t expected until the fall of 2019.
In the meantime, Harned encourages NFIB members to comment on the proposed rule.
“NFIB will continue to be active in the process on behalf of small business owners, but we need your voice and the voice of small business to contact EPA,” says Harned. “Once the rule is published in the Federal Register and the agency starts taking public comments, we will provide resources for members wanting to comment on the proposed rule on our WOTUS action page.”
NFIB will release more information on how to comment once an official proposal is published in the Federal Register in January 2019.