Last week, the United States Environmental Protection Agency and the United States Army Corps of Engineers made available a proposed rule to define waters of the United States, or WOTUS. The WOTUS definition determines the reach of Clean Water Act (CWA). Among other things, the CWA governs industrial and agricultural discharges, and regulates activity in wetlands, so the scope of the WOTUS definition is critical to industrial and agricultural interests, and most large landowners.
The proposed rule follows years of controversy and litigation that remain unresolved following the agencies’ attempt in 2015 to establish a WOTUS definition. The 2015 WOTUS definition was controversial because it greatly expanded the reach of the CWA, according to its critics. The 2015 rule was put on hold by courts, although it has recently been revived in a minority of states through continued legal action. The 2015 rule never became legally effective in Florida, where the pre-2015 regime remains in place.
The rule is simply organized, containing three sections: (1) a description of those waters that are WOTUS; (2) a description of those waters that are not WOTUS; and (3) definitions applicable to (1) and (2).
In many respects, the proposed rule is a codification of the pre-2015 practice for determining what constitutes a WOTUS, but a few significant changes are included. Most important, the proposed rule discards the use of a “significant nexus” test to determine WOTUS coverage. As the agencies explain, the proposed rule “would end the current practice of case-specific significant nexus evaluations” for many wetlands. This change is particularly important in Florida because the state contains numerous wetlands. Instead, the new rule uses more bright-line tests that promise greater regulatory certainty. The significant nexus test was included in the 2015 WOTUS rule, but was also used before 2015.
Other significant inclusions are an updated definition of a WOTUS exclusion known as prior converted cropland, and the first definition of a waste treatment system in rule.
More information about the proposed rule, including the pre-publication text and supporting documentation can be found on the EPA website, and should be consulted for application of the rule to any specific situation.
Greg Munson is the former General Counsel and Deputy Secretary for Water Policy at the Florida Department of Environmental Protection. Since 2013, he has been a shareholder practicing environmental law and government affairs at Gunster, working in the firm's Tallahassee office, where he represents industrial, mining, utility, and agricultural clients.
Debbie Madden represents clients in permitting and litigation matters involving water resources, wetlands, water supply, state and federal listed species issues, mitigation banking, state submerged lands and coastal construction.
