New Federal Water Rule Definition Released

Move Seeks To Clarify Which Waters Fall Under Federal Protection

After months of waiting, the Environmental Protection Agency and the Department of the Army released a new definition for the Waters of the United States (WOTUS) Rule. The WOTUS Rule, which gives the EPA and the Army Corps of Engineers the ability to protect “navigable waterways,” has long been a source of frustration for the housing industry due to the costly federal permits to build on or modify lands near covered waterways.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said Andrew Wheeler, the acting administrator of the EPA.

The proposed definition reduces the amount of waters that fall under the rule and eliminates the time-consuming practices of federal agencies attempting to decide if a “significant” connection exists between water near a proposed development and a navigable waterway downstream.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, assistant secretary of the Army for Civil Works.

Due to lawsuits in several states, the WOTUS rule is not universally enforced across the United States. While the rule is enforced in Minnesota, the rule is not enforced in 28 states, including Iowa, North Dakota, South Dakota and Wisconsin.

Experts expect the new WOTUS rule to be in place by September 2019.