Special Energy Update: WOTUS Rule Round Up

Energy Update - December 11, 2018

Today, EPA and Army Corps of Engineers are proposing a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act. Unlike the Obama administration's 2015 definition of “waters of the United States,” today’s proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.

Clarity, Predictability, Consistency – The agencies’ proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not. Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.

State, Tribes, Get More Flexibility – The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.” The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act. 

Wheeler on the WOTUS Plan“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 EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

Bracewell Army Corps Expert Offers View – Here is a comment from my colleague Ann Navaro, a former longtime chief counsel of litigation at the Army Corps of Engineers and Interior official from both the Obama and Trump Administrations:   

"The Administration’s proposed definition of waters of the United States is going to trigger a  huge fight.  It will eventually end up in litigation that will likely go to the Supreme Court where it may very well be upheld if the Administration does a good job of substantiating its approach.   The proposed rule represents a significant revision to how jurisdiction under the Clean Water Act has been approached for decades by narrowing areas subject to regulation.  It will reduce the regulatory burden on landowners, developers, and industry.  It will simplify the reach of the Clean Water Act so that the regulated public can better understand how the law applies to their property without having to undertake complex subjective analysis.  For example, areas of the desert Southwest that were subject to Clean Water Act jurisdiction based only on rainwater will no longer be subject to regulation under the Act.  The proposed rule will focus on waters that are meaningfully connected to other jurisdictional waters, rather than trying to expand the reach of federal jurisdiction with difficult to understand and implement subjective standards."

You can reach Ann here if you have additional questions or seek addition insight.  ANN D. NAVARO (202.828.5811, ann.navaro@bracewell.com)

Electric Co-ops Applaud EPA New Water Rule – National Rural Electric Cooperative Association (NRECA) CEO Jim Matheson today issued the following statement on the Environmental Protection Agency’s proposal to replace the 2015 Waters of the U.S. (WOTUS) rule:

“We applaud the administration for recognizing the need to replace the WOTUS rule. The 2015 rule was a significant overreach of the federal government’s authority to regulate water and land. We look forward to working with regulators on a more workable and lawful regulation, one that allows electric co-ops to conduct maintenance and build new infrastructure without triggering additional and more onerous permitting requirements. Such an approach enables electric co-ops to continue providing reliable and affordable electricity to more than 42 million Americans.”

Chamber GEI Head Praises New WOTUS Rule – U.S. Chamber of Commerce Global Energy Institute President & CEO Karen Harbert issued the following statement regarding a new proposed rule revising the definition of “Waters of the United States (WOTUS)”:

“This new rule is good news for businesses, farmers, and localities because it strikes a better balance between economic growth and environmental progress than the rule it replaces. “The previous rule gave EPA and the Army Corps unprecedented authority to permit and enforce areas well beyond what Congress intended. This revised rule will end a great deal of uncertainty that came in the wake of the former rule, and it will provide much-needed clarity.” The Chamber has played a leading role in advocating for a reasonable standard to measure federal jurisdiction under the Clean Water Act both in the regulatory process and the courts.”

Comments, Hearings – The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

EPA Links – More information including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at: https://www.epa.gov/wotus-rule.  

Call if you have any questions or need more information. 


Frank Maisano

(202) 997-5932