Clean Water Act:  EPA Issues Draft WOTUS Rules for Comment

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On February 14, 2019, the Environmental Protection Agency and the Army Corps of Engineers (under the Department of Defense) released their proposed draft rule redefining WOTUS and the effective jurisdiction and enforcement of the Clean Water Act. The proposed revised definition and related information can be found here – Revised Definition of ‘‘Waters of the United States’’. The WOTUS definition has been the subject of much litigation the jurisdiction of the EPA and Army Corps of Engineers over pollution prevention and alteration of water control features such as wetlands. In general, industry and agriculture promote a narrow definition, while environmental groups promote broader jurisdiction over wetland features – both above and below ground.

The new proposed definition of WOTUS generally aligns toward Justice Antonin Scalia’s plurality opinion in Rapanos v, EPA, 547 U.S. 715, 126 S.Ct. 2208 (2006), which sought to limit WOTUS to wetland features (e.g., upland wetlands) that abut a channel having a continuous surface connection to a navigable waterway. The new rules also exempt ditches from WOTUS definition with some limited exceptions. Comments on the proposed rules can be made until April 15, 2019.