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WOTUS Revision Would Alleviate Confusion, Says ABC in Comments to Agencies

April 17, 2019

On April 15, ABC submitted comments expressing its support for the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ proposed rule revising the definition of “water of the United States” under the Clean Water Act. ABC also filed comments as a member of the Waters Advocacy Coalition. 

As the result of President Trump’s Executive Order 13778 on “Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” the EPA and Corps published a proposed rule on Feb. 14 that seeks to provide businesses and landowners with clear definitions of what are and what are not “navigable waters” subject to federal jurisdiction under the CWA.

The agencies’ proposal outlines six categories of “waters of the United States” that would be subject to jurisdiction: traditional navigable waters, tributaries, certain ditches, certain lakes and ponds, impoundments and adjacent waters. The proposal also excludes waters that are not explicitly mentioned in these categories. 

In its comments, ABC stated its members appreciate the agencies’ “if it is not in, it is out” approach and believe that it will help alleviate confusion between jurisdictional and non-jurisdictional waters. Additionally, ABC offered several suggestions to improve upon the agencies’ proposal, including clarification of various key terms within the categories and the elimination of impoundments as a standalone category.

ABC has long been a vocal opponent of the Obama-era WOTUS rule since it was first proposed in April 2014, and in its comments on the 2019 proposal, ABC stated its continued commitment to work with the agencies and ensure the clearest possible regulations so that its members have the information they need to comply with the law.

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