WOTUS Rewrite to Take Effect in June

On April 21, the Trump administration published its new "Navigable Waters Rule" in the Federal Register
Publication in the Federal Register means the rule will go into effect on June 22, 2020. 
The Navigable Waters Protection Rule replaces the Obama administration’s 2015 Clean Water Rule that many Republicans and business groups criticized, claiming it was overly broad in its scope. The new rule goes further than simply rewriting the Obama-era protections; it also scraps certain Reagan-era regulations.
Democratic-led states and several environmental groups stated on April 20 that they would quickly file suit against the new rule. Additionally, the Pacific Legal Foundation, a nonprofit conservative legal firm that opposed the Obama administration’s reading of the Clean Water Act, also has expressed concerns with the Trump administration’s rule, saying it ties the hands of farmers and ranchers with its interpretation of streams.
Overall, the final rule is like the one the Trump administration proposed in September of last year, with several key changes:
  • Eliminates Clean Water Act (CWA) protections for the majority of the nation’s wetlands;
  • Removes protections for the nearly 18% of streams that only flow in response to rainfall or snowmelt;
  • The key changes from the draft rule provide loopholes for some of those bodies of water;
  • One tweak allows for wetlands to be protected if they have a surface water connection to a larger waterway in a “typical year,” but don’t physically abut that waterway;
  • Wetlands near rivers may be protected in the final rule if the river is prone to flooding and connects with the wetlands;
  • Eliminates protections for ephemeral streams but keeps them for those with intermittent or constant flows;
  • The draft rule would have eliminated protections for any perennial or intermittent waterways that flowed into ephemeral streams.
APWA previously submitted comments to EPA on the proposed rule, showing appreciation for the clarity the revised definition provides in terms of ditches and municipal separate storm sewer systems (MS4’s). However, APWA expressed serious concerns regarding the revised definition and assumptions made in the proposed rule, which are still valid with the new final rule. 
In three key areas, the new proposed rule could do serious harm to public works professionals and programs through:
  • Continued permitting uncertainty;
  • Assumptions regarding cooperative federalism; and
  • Additional costs for water providers and water customers.
For more information on the new WOTUS rule, please contact APWA Government Affairs Manager Sean Garcia.