In a positive first step to finally obtain a clear and consistent definition of “waters of the US” (WOTUS) and provide certainty to the development and real estate industry, the EPA has sent a proposal to the White House Office of Management and Budget (OMB) to clarify which wetlands and waterways are protected by the Clean Water Act.
While EPA's announcement did not include any details about the proposal or a timeframe for review, EPA Administrator Scott Pruitt has indicated that the new definition will follow the vision of the late Supreme Court Justice Antonin Scalia in a 2006 case, which could significantly reduce the number of waters that are federally protected to only those with "relatively permanent" surface water connection to larger bodies of water.
The new definition of WOTUS is the second in what Pruitt has called a "two-step" process to repeal and replace the WOTUS Rule. In the meantime, the administration has been able to delay the rule by two years.
Once the OMB review is finalized, the EPA will release the proposed rule for public comment.