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Source: Bloomberg Environment Quarterly Outlook

The range of waterways subject to federal pollution regulations would be narrower under a hotly anticipated proposal released Dec. 11, but the Trump administration said it did not know the on-the-ground impact.

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.

Andrew Wheeler, acting head of the EPA, said his primary goal in crafting this new proposal was to make it easier for a landowner to tell whether a federally protected waterway is on their property and therefore subject to permitting requirements if it is disturbed.

The 2015 measure from the Obama administration took a broad view of which waters are covered, while the Trump administration takes a much more narrow approach. However, both the administration and its opponents said there’s no way of telling exactly how many waterways would lose federal protection under this new scheme (see WPC’s Outlook on Water, Third Quarter 2018).

“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.

What’s less clear is the status for so-called “intermittent streams” that only flow during some parts of the year. 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.

Blan Holman, an attorney with the Southern Environmental Law Center, said this “typical year” concept accomplishes the opposite of the administration’s stated goal of simplification. He said 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.

Now that the proposal is out, the Trump administration will accept public comments for 60 days. It will then have to undergo the time-consuming process of analyzing those comments before it can be issued as a final rule. Holman said it is a near certainty that, if and when that happens, the new WOTUS rule will be challenged in court by environmental groups like his.

Multiple federal district court judges struck down earlier attempts to delay the implementation of the Obama administration’s WOTUS rule. Ultimately, the issue could wind up back at the Supreme Court, which has tried and failed several times to issue rulings to end the confusion about which waters qualify for federal regulation.

One of the authors of those water jurisdiction rulings, former Justice Anthony Kennedy, is no longer on the court, having been replaced earlier this year by Justice Brett Kavanaugh.

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