Key "Waters of the United States Rule" Sent for Interagency Review

April 7, 2015
Kristine A. Tidgren

In a blogpost yesterday, EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy announced that their offices had sent a draft final version of what's been called the Waters of the United States (WOTUS) rule to the Office of Management and Budget on April 3. The controversial rule, which the EPA and the U.S. Arny Corps of Engineers have attempted to rebrand as the "Clean Water Rule," will now undergo an interagency review before becoming final.

While refusing to speak of "every detail" since "it's not final yet," McCarthy and Darcy made some general comments about the "spirit" of the proposed final version of the rule:

  • First, people depend on clean water: one in three Americans get their drinking water from streams currently lacking clear protection.
  • Second, our economy depends on clean water: manufacturing, farming, ranching, tourism, recreation, and other major economic sectors need clean water to function and flourish.
  • Third, our cherished way of life depends on clean water: healthy ecosystems support precious wildlife habitat and pristine places to hunt, fish, boat, and swim.

While stating that only "broad" points about the final rule can be shared, McCarthy and Darcy promised that the public will see that the agencies listened to the many public comments and made changes to the proposed rule based upon the input. These changes, the blogpost said, are "consistent with the law and the science."

Specifically, McCarthy and Darcy highighted these areas of emphasis:

  • Better defining how protected waters are significant. (Promising a better description of the phrase "significant nexus.")
  • Defining tributaries more clearly. (Promising more "bright lines" when it comes to what was an ambiguous definition of "tributaries.")
  • Providing certainty in how far safeguards extend to nearby waters. (Promises a clearer definition of what comprises waters "adjacent" to tributaries.)
  • Being specific in the protection of the nation’s regional water treasures. (Assuring a clearer definition of “other waters” to subvert a complicated case-by-case analysis.)
  • Focusing on tributaries, not ditches. (Promising a clarification of covered "ditches," stating that ditches that actually function like tributaries will be covered.)
  • Preserving Clean Water Act exclusions and exemptions for agriculture. (The blogpost states, "We will protect clean water without getting in the way of farming and ranching. Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.")
  • Maintaining the status of waters within Municipal Separate Storm Sewer Systems. (The final rule will clarify that the current permitting system for municipal storm sewer systems will not be changed.)

It is unclear exactly how long the interagency review will take. McCarthy and Darcy state in the blog that the agencies are finalizing the rule "later this spring." We will keep you posted and bring you our analysis of the final version when it is unveiled.

For more information on this important rule, read our analysis of the proposed rule when it was released last year at this time,

CALT does not provide legal advice. Any information provided on this website is not intended to be a substitute for legal services from a competent professional. CALT's work is supported by fee-based seminars and generous private gifts. Any opinions, findings, conclusions or recommendations expressed in the material contained on this website do not necessarily reflect the views of Iowa State University.

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