The U.S. Environmental Protection Agency and the US Army Corps of Engineers (Corps) have proposed to withdraw the 2015 waters of the U.S. rule, also referred to as the 2015 WOTUS rule. The intent of the 2015 WOTUS rule was to provide clarity as to which wetlands and waterways were covered by the Clean Water Act. Unfortunately the new rule was so ambiguous with unquantifiable terms such as “adjacent”, “significant nexus” and “tributary” that both professional wetland delineators and the Corps regulatory agents would interpret the new rules differently. While the 2015 WOTUS rule was halted due to the U.S. Circuit Court of Appeals issuing a nationwide stay in October 2015, some Corps offices were reviewing delineations under the premise that the stay would be lifted, further adding to the confusion.
The group most impacted by the new rules would have been farmers as the 2015 WOTUS rule effectively put a significant amount of upland farming area into the confines of the Clean Water Act, undermining their ability to farm as usual.
The next step for the administration and regulatory agencies will be to develop a WOTUS definition that protects water quality without asserting federal regulatory power over puddles and sheet flow in farm fields. If the past interpretations of a WOTUS definition are any indicator of the future, finding consensus on this issue between, farmers, environmentalists and regulatory agencies won’t be an easy task.
The agencies are utilizing a notice and comment rulemaking process in which they are soliciting input from constituents. Information regarding this outreach process can be found on the EPA website at www.epa.gov/wotus-rule/outreach-meetings