Proposed Rule Change Affects Definition of WOTUS

The US Environmental Protection Agency (EPA) and US Army Corp of Engineers (ACE) recently proposed changes to redefine the definition of “Waters of the United States” (WOTUS).  This definition has applicability for SPCC plans, SWPPPS, FRPs and site development regulations.

You may find the following summary helpful in determining the impact of this proposed rule:

  1. The proposed changes to the 2015 rule will not be applicable until Feb 6, 2020;
  2. This proposal eliminates the need to determine whether a clear enough connection exists between a water body and a downstream traditional navigable water;
  3. Rivers and streams that contribute perennial or intermittent flow to downstream traditional navigable waters in typical year are jurisdictional under the proposal; no ephemeral (short term) features are considered jurisdictional under the proposal.
  4. Fewer ditches will be regulated;
  5. Isolated lakes, ponds and wetlands may be considered unjurisdictional;
  6. Impoundments will remain jurisdictional;
  7. Wetlands must either abut jurisdictional waters or have a direct hydrological surface connection to jurisdictional waters in a typical year to be jurisdictional themselves; wetlands physically separated from jurisdictional waters by a berm, dike, or other barrier are not adjacent if they lack a direct hydrologic surface connection to a jurisdictional water in a typical year.

The agencies will hold an informational webcast on January 10, 2019.  For more detailed information follow this link: or contact one of the regulatory specialists at St.Germain.