The US Environmental Protection Agency (USEPA) and US Army Core of Engineers (USACE) have issued a revised regulation to define what qualifies as Waters of the United States (WOTUS), and this will become effective on August 28, 2015. The new definition is an attempt by the USEPA and USACE to determine their jurisdictional limits in what has become an ambiguous regulatory framework thanks to two Supreme Court cases in 2001 and 2006.
The new definition will not:
- Change the inclusion or definition of traditional navigable waters.
- Change the inclusion or definition of interstate waterways.
- Change the farming exemptions.
- Include gullies, rills, or erosional features.
The new definition will include a number of new waterbodies including:
- Any adjacent water body that is within the flood plain of or has a connection to any WOTUS.
- Tributaries to WOTUS. Tributaries are defined as any waterway with a bed, bank, and ordinary high water mark. This includes streams that flow intermittently, seasonally, or only when it rains.
Additionally, the new regulation requires any isolated or other waters and wetlands near adjacent bodies to be evaluated on a case by case basis to determine if they are considered WOTUS. The evaluation will determine if the waters significantly affect the chemical, physical, or biological integrity of the WOTUS.
The addition of adjacent waters and tributaries (which can be most ditches within the drainage basin of steams) will increase the regulatory reach of the USEPA and USACE much deeper into the drainage basin of major rivers and streams that provide clean water for drinking, farming, and raising of livestock. While this could create regulatory burdens on some, it is an effort by the USEPA and USACE to ensure clean water.
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