Comments Due on Rule to Redefine WOTUS

August 2, 2017

On July 27, 2017, the U.S. Army Corp of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published a proposed rule to recodify the existing definition of Waters of the United States (WOTUS). The rule would apply the definition of WOTUS as it existed before the 2015 Clean Water Rule. The proposed rule would rescind the 2015 Clean Water Rule and replace it with a recodification of the text that existed prior to 2015. EPA and the Corps have certified that the rule will not have a significant impact on a substantial number of small entities; however they are seeking public comments on the rule.

The WOTUS Rule, which defines the scope of federal jurisdiction under the Clean Water Act, was adopted by the EPA and Corps under the Obama Administration in a 2015 rule titled “Clean Water Rule: Definition of ‘Waters of the United States.” The WOTUS rule defines the types of water bodies that are covered under federal water protection statutes. The scope of the rule has been litigated for decades and in 2014 the EPA and Corps released a proposed rule to clarify the jurisdictional questions, with the final rule published in 2015.

The rule raised concerns with many, including NSBA, that the rule did not clarify the jurisdictional questions but would instead lead to greater uncertainty. The primary concern was that several portions of the rule seem to grant EPA more discretion, and therefore would increase uncertainty and could potentially greatly expand the jurisdiction of the water protection statutes to previously unregulated small water bodies like puddles and ditches. NSBA believes that the WOTUS rule has far-reaching implications for project developers across the energy, water, agricultural, construction, and transportation sectors.

Under the newly released 2017 rule proposed by the EPA and Corps under the Trump Administration, the agencies would rescind the WOTUS Rule and re-codify the regulations that existed before the WOTUS Rule.

According to the administration, this action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of “waters of the United States.” The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.

Written comments are due by August 28, 2017. Read the proposed rule here. Comments may be submitted here.

NSBA has long opposed the WOTUS rule and has remained concerned that it does not really clarify for small businesses what waters will fall under the jurisdiction of the EPA and Army Corps of Engineers. Clarity and predictability in the regulatory system are essential for small businesses to operate and grow. Without an idea of what its obligations will be, it is very difficult for a small business to make plans to expand operations or even make long term plans for ongoing operations. A more transparent and predictable regulatory environment would allow small businesses to grow and expand knowing what will be required of them.