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Source: Bloomberg Environment Quarterly Outlook


Defining Waters of the US is still under debate. As we stand the breadth of waterways subject to the federal pollution regulation could still narrow under a proposal released December 11, 2018. As of quarter four our current administration is unsure what the on the ground impact will ultimately be or should be. The proposal is the administration’s attempt to replace an Obama-era rule to better define waters of the U.S., or WOTUS, which are subject to Clean Water Act requirements.


The goal of the new proposal is to make it easier for a landowner to determine if a waterway on their property is subject to permitting requirements. Simultaneously the administration attempted to delay the WOTUS rule for two years, but this effort was struck down in several courts. It was rejected by several district court judges, who ruled that the administration did not follow proper procedures to suspend the implementation of an existing regulation. After an appeal attempt the Trump administration drop its challenges on March 8, 2019.


The existing Obama-era proposal from 2015 can be ambiguous on what the view of a WOTUS is, as it takes a broad view of which waters are and could be covered. The Trump administration wanted to take a narrower approach. At this point both the administration and opponents to the Trump-era proposal have not been able to narrowly define how many waterways would lose federal protection under the new definition.


“There is no nationwide map that estimates WOTUS,” Wheeler told reporters. Rivers, lakes, and estuaries still would be protected under the proposal (RIN:2040-AF75), while isolated ponds and wetlands that don’t connect to larger bodies of water would not, which was a hot topic when the Obama-era WOTUS rule was being proposed and discussed.


What is still not clear in either proposal is the status for “intermittent stream”, which are streams that only flow during some parts of the year and possibly only under certain weather conditions. Dave Ross, head of the EPA’s Office of Water, said the agency had developed a new way to determine whether these streams are eligible for federal protection. If a stream regularly flows into a larger body of water in “a typical year,” that stream is in, he told reporters. According to Blan Holman, attorney with the Southern Environmental Law Center has stated this “typical year” concept accomplishes the opposite of the administrations goal of simplification and narrowing the definitions. The reason this attempt of simplification could become burdensome is that Mr. Holman is stating it would require a landowner to measure a stream’s flow based on a 30-year rolling hydrological average. “Maybe if you have a statistics Ph.D you can do that, but I don’t think for the average person you can do that,” Holman, who has litigated in defense of the Obama administration’s WOTUS rule, told Bloomberg Environment.


In February the administration began a 60-day public comment period. After the comment each comment received will need to be analyzed before any movement may be made towards issuing a final rule. Even if the final rule is accepted and issued, it is expected by legal experts that the Trump-era WOTUS rule will be challenged in courts.


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