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WOTUS Update: Waters of the United States and the 2019 Proposed Definition

By NACD Natural Resource Policy Specialist Adam Pugh

Since NACD’s February 2018 blog explaining the role of the courts during the implementation of the 2015 Clean Water Rule, there have been a few updates on the waters of the United States (WOTUS).

Prior to publishing the 2019 proposed definition of WOTUS, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) solicited comments, receiving more than 6,000 recommendations from outside organizations for best ways to develop the proposed rule. In 2017, NACD submitted its recommendations to the agencies. Since then, the agencies provided fact sheets on the economic analysis for the proposed rule, key proposed changes and how they incorporated public input while drafting the proposed rule.

On Feb. 14, 2019, the EPA and USACE published the 2019 Proposed Definition of WOTUS in the Federal Register. The comment period was open for 60 days and closed on Apr. 15, 2019. NACD President Tim Palmer submitted a public comment to the agencies emphasizing the need to enhance coordination with local conservation districts when making local determinations for which waters may be jurisdictional. In total, the EPA and USACE received nearly 400,000 comments in response to the proposed definition.

After the agencies review the comments and make necessary edits to the proposed definition, they are eligible to publish the final rule. For the 2015 Clean Water Rule, the EPA took approximately one year for review before publishing the final rule. This time around, it is expected the EPA and USACE will take a similar period to review, edit and publish the final definition of WOTUS.

Like the 2015 Clean Water Rule, once the 2019 proposed definition is final, we expect it to instantly be caught up in the courts and have a delayed period of enforcement. NACD will continue to monitor the proposed rule and its implementation and will provide you with the most relevant up-to-date information.

Adam Pugh is NACD’s Natural Resource Policy Specialist and can be reached at adam-pugh[at]nacdnet.org.

Tags: WOTUS, EPA, USACE, CWA, clean water act

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