Final WOTUS rule comes up short

T he Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) an nounced their final Clean Water Rule: Definition of Waters of the United States (WOTUS) rule, which would increase the number of streams and wetlands that are protected under the Clean Water Act (CWA). The rule, announced May 27, will take effect in 60 days after its publication in the Federal Register .

In a statement released the same day, NACo Executive Director Matt Chase said the rule falls short of adding clarity to protecting the nation's waters and adds costs with few benefits.

"While we appreciate the agencies' recent efforts, the flawed consultation process has resulted in a final rule that does not move us closer to achieving clean water goals and creates more confusion than clarity," Chase said.

"Counties support common-sense environmental protection, but the final rule expands federal over sight and will create costly delays in critical work without any proven environmental benefit."

NACo is undertaking an exten sive analysis of the rule's impact on counties.

Following are initial highlights.

There are eight categories of waters that fall under federal ju risdiction traditional navigable waters, interstate waters, territorial seas, impoundments (i.e. dams), tributaries, adjacent waters and specific regional features/100-year floodplain/4,000 feet from WO TUS with a significant nexus.

The first four categories are essentially unchanged from cur rent rule traditional navigable, interstate, territorial seas and im poundments

Ditches and channels are classified as tributaries. However, the final rule contains exemptions for certain types of ditches. NACo is assessing whether the language is helpful for counties

Prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools and Texas coastal prairie wetlands may be jurisdictional

All waters located within a 100-year floodplain and all waters within 4,000 feet of the high-tide line or ordinary high water mark may trigger the significant nexus determination and be subject to WOTUS regulation.

Storm water systems and wastewater recycling structures are exempt if they are built on "dry land." However, it's less certain whether storm water systems that have a portion of the system built in floodplains or adjacent to a WOTUS, are exempt.