WATERS OF THE US - UPDATES TO PROPOSED EPA RULE
In April 2014, USEPA released a draft rule redefining “waters of the United States” (WOTUS) under the Clean Water Act. The purpose of this updated definition is purportedly to reduce confusion and ambiguity regarding identification of water bodies subject to Clean Water Act jurisdiction. Recently, EPA has responded to major concerns from submitted comments. EPA officials have acknowledged that several foundational words and phrases need to be more clearly redefined, including “significant nexus”, “tributary”, and “shallow subsurface connection”. The inclusion of waterbodies with a “groundwater connection” to downstream waters received significant attention from comment submissions and will be addressed in the final rule. Furthermore, additional water bodies and infrastructure will be added to the exclusion list, likely including MS4 infrastructure and green infrastructure. As a note of clarification, several media outlets have incorrectly reported that the most recent WOTUS draft asserts EPA jurisdiction over puddles. A leaked draft of the rule from early 2014 explicitly listed puddles as excluded from WOTUS, but has since been removed, implying puddles may be considered WOTUS. This revision drew ubiquitous confusion and criticism. EPA has clarified:
Because of the lack of common understanding and precision inherent in the term “puddles,” the agencies determined that adding puddles would be contrary to the agencies’ stated goals of increased clarity, predictability, and certainty. In addition, one commonly understood meaning for the term “puddle” is a relatively small, temporary pool of water that forms on pavement or uplands immediately after a rainstorm, snow melt, or similar event. Such a puddle cannot reasonably be considered a water body or aquatic feature at all, because usually it exists for only a brief period of time before the water in the puddle evaporates or sinks into the ground. Puddles of this sort obviously are not, and have never been thought to be, waters of the United States subject to CWA jurisdiction.3
Despite substantial involvement in preliminary drafts and underlying studies, recent updates suggest that EPA HQ is reducing the roles of regional EPA offices and the US Army Corps of Engineers (USACE) in the rulemaking process.
Some industry sources call attention to the requirements of the Administrative Procedure Act (APA) with regard to the status of the WOTUS rule to be released by EPA. If a final rule is released, with substantial revisions in disagreement with or with disregard of submitted comments, absent a re-proposal and additional comment period, then EPA may violate the APA. Due to the high volume of comment submissions, estimated at over 800,000, EPA Administrator Gina McCarthy announced a final WOTUS rule or re-proposal will be delayed from the original tentative deadline of April 2015 to later in the spring, implying as late as June.
3 Federal Register / Vol. 79, No. 76 / Monday, April 21, 2014 / Proposed Rules pg. 22218.