News & Resources

Phase 2 of WOTUS Repeal and Replace Process Begins

January 22, 2019

After years of uncertainty and ambiguity regarding the Waters of the U.S. (WOTUS) rule, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers have proposed a new definition of what constitutes “waters of the United States” under the Clean Water Act meant to be more understandable for farmers and regulators.

Unlike the 2015 definition of WOTUS that was widely criticized as being confusing and cumbersome, a more straightforward definition would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development. It would also provide clarity, predictability, and consistency so that the regulated community can easily understand where the Clean Water Act applies.

The proposal would replace the 2015 definition with one providing states and landowners with more certainty to manage their natural resources and grow local economies. Under the new initiative, a farmer should be able to look out of his truck and understand whether he was looking at federally regulated water without relying on lawyers and consultants, according to the EPA.

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. The plan also explains what are not “waters of the United States,” including features that only contain water during or in response to rainfall (e.g., ephemeral features), groundwater, many ditches (including most roadside or farm ditches), prior converted cropland, stormwater control features, and waste treatment systems.

The agencies accepted pre-proposal recommendations and received more than 6,000 – NMPF included. The agencies are requesting comments for 60 days once it is published in the Federal Register, which is expected early this month. EPA and the Army Corps will hold an informational webcast on Jan. 10 and a listening session in Kansas City, Kansas, on Jan. 23.