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Final WOTUS Rule Released

Tuesday, June 2, 2015

(North American Meat Institute)

The Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) last week issued the final version of the Clean Water Rule, also known as the Waters of the U.S. (WOTUS) rule, which redefines the bodies of water that will be regulated under the Clean Water Act (CWA). The proposed rule extends federal jurisdiction over broad categories of tributaries and adjacent waters, defining tributaries as any water with a bed, bank and ordinary high water mark that contributes flow directly, or through other water bodies, to a traditional WOTUS. The final rule also establishes more detailed criteria for determining adjacency to a navigable water and adds new language regulating regional wetland systems, including the Prairie Potholes in the upper Midwest and vernal pools in western California. These wetlands will be subject to a case-specific significant nexus evaluation to determine whether these waters significantly affect the chemical, physical or biological integrity of a navigable waterway.

Meanwhile, EPA and the Corps stated that the rule preserves existing exemptions for agricultural practices, including the movement of livestock across streams, and limits regulation of ditches solely to ones that are constructed in streams or carry water downstream. Furthermore, the rule adds exemptions for erosional features, such as gullies and rills, and excludes groundwater and underground drainage from federal jurisdiction.

The U.S. Senate is expected to vote on a bill (S. 1140) that would essentially eliminate the rule and restrict how the EPA and the Corps could rewrite its replacement. The U.S. House of Representatives earlier this month passed the Regulatory Integrity Protection Act of 2015, which would require the EPA to consult states and industry to develop a new proposed rule defining the bodies of water that should fall under federal oversight. The bill passed by a margin of 261-155,17 votes short of a veto-proof majority. The House also passed a fiscal year 2016 Energy and Water appropriations bill that would delay implementation of the final rule beginning October 1, 2016.

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