In a 2015 News Update we provided a detailed analysis   on the Obama Administration's 2015 Clean Water Act Rule ("2015 Rule") regulating waters of the United States ("WOTUS").

The 2015 Rule seemed to raise more questions than it answered. A new rule from the Trump Administration may provide more clarity on this issue, which would be a welcome change from the tumultuous last few years. On December 11, 2018, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers released a long-awaited proposed rule ("Proposed Rule") changing the definition of WOTUS. The Proposed Rule is not yet available on the Federal Register but is available on the EPA's website along with fact sheets and summaries. Dates for public comment have not yet been released.

The Proposed Rule is intended to increase predictability and consistency among the states after the 2015 Rule was subject to a wealth of litigation and resulted in 28 states issuing preliminary injunctions to follow pre-2015 Rules. President Trump issued Executive Order 13778 in February 2017, which was Step One of rolling out the new WOTUS rule, stating that "[i]t is in the national interest to ensure the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution." The Executive Order directed the EPA to promulgate a new rule consistent with the Executive Order, Step Two of the WOTUS rollout, and revise or rescind the 2015 Rule if necessary. The Proposed Rule seeks to strike a balance between federal and state waters, and restore and maintain the integrity of the nation's waters to preserve traditional sovereignty of the states over their own land and water resources.

Some of the key changes include:

• Limiting the definition of WOTUS to traditional navigable waters, including territorial seas, tributaries that contribute perennial or intermittent flow to such waters, certain ditches, certain lakes and ponds, impoundments of otherwise jurisdictional waters, and wetlands adjacent to other jurisdictional waters. 
• Clarifying that WOTUS does not include features that flow only in response to precipitation such as groundwater, certain ditches, certain artificial lakes, prior converted cropland, stormwater control systems, and waste treatment systems. 
• Describing "adjacent wetlands" as wetlands that abut or have a direct hydrological surface connection to other waters and fall within the scope of WOTUS. 
• Eliminating interstate waters from protection under the CWA to preserve and protect the rights and responsibilities of the states unless they qualify for protection under other parts of the Proposed Rule. Interstate waters are all rivers, lakes, and other waters that flow across or form part of state boundaries.

Because this rule is in pre-publication format and not yet published in the Federal Register, we will be monitoring its release to assist clients in the public comment process. Additionally, we are preparing a more detailed analysis to be released next year once the final Proposed Rule is released.