Monday, December 10, 2018

Report: New definition of 'waters of the U.S.' would strictly limit the Clean Water Act to always-flowing streams

Most wetlands wouldn't qualify under the new definition.
(Photo by Petr Kratochvil,
This week the Trump administration is expected to "propose to severely restrict the number of wetlands and waterways covered by the Clean Water Act," Ariel Wittenberg reports for Energy and Environment News. "The proposed new definition of 'waters of the United States,' or WOTUS, will erase federal protections from streams that flow only following rainfall, as well as wetlands not physically connected to larger waterways, according to a copy of EPA talking points obtained by E&E News."

According to those talking points, the Environmental Protection Agency and the Army Corps of Engineers will make the announcement on Tuesday. It's unknown how much of our nation's wetlands and waterways will lose federal protection, but Wittenberg notes that the talking points give some indications. The talking points say that "ephemeral streams and related features" that only exist after rain will be entirely excluded from WOTUS. The proposal aims to protect only wetlands that are "physically and meaningfully connected" to other waters protected under WOTUS.

"It's not clear how the administration would define 'physically and meaningfully connected,' Wittenberg reports. "But the agencies have set out to write a regulation based on a 2006 opinion written by the late Supreme Court Justice Antonin Scalia, who said the Clean Water Act should extend only to waters and wetlands with a 'continuous surface connection' to nearby rivers and streams where it is 'difficult to determine where the 'water' ends and the 'wetland' begins.'"

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