WOTUS Proposed Rule Comment Period Ends October 20, 2014

Stakeholders are now on the clock to provide comments to the U.S. Army Corps of Engineers (“Corps”) and the Environmental Protection Agency’s (“EPA’s”) sweeping proposal to re-define jurisdictional “waters of the United States,” now being called by the acronym “WOTUS.” The comment deadline of October 20, 2014, is fast approaching though Congress is seriously considering legislation to stop it. While numerous national and state stakeholder groups are expected to comment, the impact to the regulated community is dramatic and should not be taken lightly. Consider the following:

• The proposed WOTUS rules have the potential to completely override the new definition of streams adopted by the Tennessee General Assembly in 2009. By expanding jurisdiction to “tributaries” of navigable or interstate waters, regardless of flow, source of water, or presence of key aquatic life, many watercourses now determined to be wet weather conveyances by law, and not subject to NPDES or Section 404 permitting, will be WOTUS.
• Likewise the proposed WOTUS rules could render nearly all ditches, including roadside ditches, jurisdictional WOTUS. Imagine having to get a 404 permit to mow a roadside ditch even if the ditch is a manmade ditch.
• The proposed WOTUS rules could affect the current exemptions for farm ponds because impoundments of wet weather conveyances may no longer be allowed.
• The proposed WOTUS rules expand jurisdictional wetlands by expanding the definition of “adjacent” wetlands to include “neighboring” wetlands. These wetlands are in the same riparian zone, but not next to WOTUS. Together with the expansive definition of tributaries, the change is significant. The Corps/EPA explained that this language is a clarification rather than a change.
• Because the proposed WOTUS rules apply to all water programs administered by the EPA/Corps, the impact includes Section 401, 402 and 404 permits, 303 water quality standards. The rules will more than likely greatly expand the universe of streams considered impaired and listed on the 303(d) list or that are subject to a TMDL. Such designations will mean, for example, that a discharge into many streams now considered to be wet weather conveyances will be required to be protective of fish and aquatic life in that ditch and not a defined Tennessee stream.

Efforts by Congress are underway to stop the rules by requiring the agencies to withdraw the rules and to also withdraw the so-called final guidance submitted to OMB that was never published. On September 9, 2014, the U.S. House of Representatives passed H.R. 5078: “Waters of the United States Regulatory Overreach Protection Act of 2014.” The bill has not yet been scheduled by the Senate. Should Congress not ultimately pass the bill or if the President vetoes the bill, then the rules may not be delayed. Therefore, comments are still needed.