EPA and USACE Release Final Waters of the U.S. (WOTUS) Rule

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This week, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released a finalized Waters of the U.S. (WOTUS) rule named the Navigable Waters Protection Rule to define “Waters of the United States.”  This final rule comes after the agencies released a proposed rule in December 2018 to redefine the scope of the federal government’s jurisdiction over waters of the United States covered by the Clean Water Act (CWA).

Last April, with technical assistance from ASCE’s Environmental & Water Resources Institute (EWRI) members and a breadth of feedback from ASCE members, ASCE submitted public comments in response to the proposed rule. Additionally, ASCE submitted a request for a 60-day extension to the public comment period in February, which was denied.

After decades of court confusion, the Obama Administration proposed and finalized a new WOTUS definition in 2014 and 2015. ASCE submitted comments to this proposed rule – many of which were included in the 2015 final WOTUS rule.

ASCE’S diverse members are directly and materially affected by the proposed changes to federal water jurisdiction under the CWA in their professional practice areas, and this final rule will have an extensive impact on infrastructure developments across the board. ASCE members represent the profession that plans, designs, and builds much of the nation’s infrastructure. As a result, civil engineers are keenly aware of, and often most affected, by regulations that either facilitate or impede expeditious, cost efficient, and environmentally effective infrastructure development.

ASCE carefully reviewed the 2018 proposed rule, engaged with members, and attended a stakeholder outreach event conducted by the agencies. After careful staff and member review and consultation and ensuring consistency with ASCE Policy Statement 378 on National Wetlands Regulatory Policy, ASCE concluded that while we could support a WOTUS rulemaking by the agencies to better define federal water jurisdiction under the CWA, our Society could not support the proposed rule as written. In ASCE’s comments, we urged review on the proposed rule’s definition of ditches, wetlands, and ephemeral streams.

Moreover, the Society felt it was critical that we have clear jurisdiction for national wetlands policy to ensure that wetlands’ issues are properly addressed in a timely and predictable manner during the project development process.

This week’s final rule is similar to the proposed rule and significantly shrinks the scope of the CWA. The final rule removes protections for ephemeral streams but keeps them for those with intermittent or constant flows and removes protections for wetlands that do not have surface water connections to intermittent or perennial streams. The rule does, however, allow jurisdictions to remain over headwater streams that flow seasonally or year-round, as well as for wetlands that are divided by a natural berm or a road, as long as they have a surface water connection. Late last year, the EPA Science Advisory Board posted a draft letter stating that the revised rule “decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical, and biological integrity’ of these waters.” Following the steps of past WOTUS rules, this new rule is expected to face a barrage of legal challenges.

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