Redefining Waters of the US
When changes to the Waters of the United States are proposed by the federal government, it is important to provide timely information to our clients. A change in a definition becomes a modification in regulation, which leads to project implications.
On December 11, 2018 the Environmental Protection Agency (EPA) and the Department of the Army presented a proposal for the redefinition of jurisdictional Waters of the U.S. (WOTUS). The goal of this action, according to the proposal, is to provide a “clear, understandable and implementable definition of WOTUS that will result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.”
Some portions of the definition of WOTUS will be left unchanged. Some of the proposed changes are positive and others are potentially detrimental.
There will be no changes to the definition of WOTUS regarding traditional navigable waters (TNWs), impoundments, prior converted cropland, and waste treatment systems.
Positive changes are proposed regarding the exclusion of upland, roadside and most farm ditches. These changes will save time and fees at the project level. Detrimental changes proposed to WOTUS include the removal of ephemeral water features and the removal of wetlands not connected by surface waters to WOTUS.
The removal of ephemeral water features from WOTUS will have negative environmental impacts. The watersheds of arid ecosystems are often defined by ephemeral features that only convey seasonal rainfall and snowmelt. Unregulated development will lead to an increase in hard surfaces, which will cause more runoff, more flash flooding and decreasing water quality. The removal of ephemeral streams from the regulatory process also means that these impacts will not be mitigated.
To be included as a tributary under the new definition of WOTUS, a stream must flow “more often than just when it rains”. This clarification means that once-intermittent streams can be redefined and then eliminated from federal jurisdiction. The combination of extended periods of drought and ongoing climate change may create even more uncertainty regarding what tributaries are included as WOTUS.
For nonadjacent wetlands, surface water does not wholly define a wetland. Depending on topography, geology, and soils, wetlands can be connected via subsurface hydrology. Eliminating the regulation of such wetlands will be detrimental to water quality long term.
While ceasing the regulation of ephemeral streams and nonadjacent wetlands may to seem to provide cost savings for projects, many states already regulate these waterbodies and more will likely follow suit.
The EPA and Army will take comments on the proposed rule change for 60 days after publication in the Federal Register. The EPA and the Army will also hold an informational webcast on January 10, 2019 and a listening session in Kansas City, KS, on January 23, 2019. It is imperative we take this opportunity to educate ourselves on these proposed changes. Those affected by these changes should ensure our voices are heard regarding this pivotal issue.
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