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Reggie L. Bouthillier
Tallahassee
Jeffrey A. Collier
Tampa
Jacob T. Cremer
Tampa
F. Joseph Ullo, Jr.
Tallahassee
Special thanks to Nicholas Marler who assisted in the drafting of this alert. Nicholas is a second-year Juris Doctor Candidate at Stetson University College of Law.
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Replacement of Waters of the United States Rule Narrows the Reach of the Clean Water Act
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The U.S. Environmental Protection Agency ("EPA") continued its two-step plan to repeal and revise the 2015 Waters of the United States Rule ("WOTUS"). On January 23, 2020, the EPA and the Army Corps of Engineers finalized
the Navigable Waters Protection Rule ("New Rule").
As we
previously reported, WOTUS was an attempt to provide clarity to federal water protections. However, it lacked clear definitions and reliability - and many believed expanded federal jurisdiction too far - leading to more than half of the states rejecting WOTUS. In response, President Trump issued a 2017
Executive Order requiring a review and revision of WOTUS. In September 2019, the EPA announced the repeal of WOTUS as the first step in the two-part repeal and revision of the rule.
- Territorial seas and traditional navigable waters;
- Tributaries;
- Lakes, ponds, and impoundments of jurisdictional waters; and
- Wetlands.
The New Rule states that all waters not mentioned in the four categories, listed above, are excluded from the definition of "waters of the United States." In other words, if the body of water does not fall under one of those four categories, it is not within the jurisdiction of the Clean Water Act ("CWA"). Additionally, the New Rule provides the following categories of "waters" that are explicitly not considered "Waters of the United States":
- Groundwater
- Ephemeral waters
- Stormwater Run-off
- Converted cropland
- Artificially irrigated areas
- Artificial lakes and ponds
- Water-filled depressions caused by mining or construction
- Stormwater control features
- Groundwater recharge, water reuse, and wastewater recycling structures
- Waste treatment systems
- Farm and roadside ditches
According to the EPA, the New Rule seeks to provide a balance between protecting the nation's waters with clear, predictable language while also preserving the rights of state and local governments, private property owners, and tribes. While the rule should provide some assistance when determining if water is protected by the CWA, the new rule has yet to be tested in litigation that is sure to ensue.
We will continue to monitor and report on any changes the New Rule brings. Our Land Development, Zoning & Environmental team has extensive experience advising clients on all matters related to wetland regulation, permitting, and enforcement, and all aspects of administrative rule development. For more information, please
contact us.
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Hillsborough County Continues Discussion on Changes in Land Use and Development Policies to Prepare for Smart and Sustainable Growth
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Florida Supreme Court Reverses Course to Allow Personal Injury Damages for Some Environmental Claims
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Major Land Use and Development Policies Discussions Continue in Hillsborough County
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*Abbye Feeley, Ken Metcalf, Michael Paparesta, Marco Paredes, Chris Smith, and David Smith are not attorneys and are not authorized to practice law.
Abbye, Ken, and David are highly experienced planners. Ken is AICP certified.
Chris is a highly experienced GIS analyst.
Michael is a highly experienced real estate analyst.
Marco is a highly experienced government affairs professional.
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