What constitutes a Water of the United States (WOTUS)? The answer to this question has sweeping implications for businesses throughout Ohio. Wherever WOTUS are present, the Clean Water Act (CWA)’s protections require extensive compliance measures. The Ohio Chamber of Commerce submitted comments to the United States Environmental Protection Agency (U.S. EPA) supporting the agency’s move to return sense and predictably to WOTUS determinations.
The definition of WOTUS has been controversial for years as shown by the extensive list of court cases examining the matter. U.S. EPA attempted to revise the WOTUS definition in 2015 in a way that broadened it to possibly include backyard ditches and intermittent streams. The Ohio Chamber of Commerce and a host of other stakeholders raised concerns about the broadness of the revised definition, as well as the uncertainty of applying the definition to real-world applications.
Recognizing that uncertainty harms stakeholders, U.S. EPA moved to rescind the 2015 WOTUS definition and offered a new definition that provides regulatory certainty and respects the cooperative federalism model underpinning the CWA.
U.S. EPA’s proposal also recognizes that the definition of WOTUS applies to many other programs included in the CWA, as well as state and local programs. For example, the definition of WOTUS is also found in the Act’s provisions covering the discharge of oil and hazardous substances and the administration of the National Pollutant Discharge Elimination System (NPDES) permitting program.
The agency’s proposed revisions to the definition of WOTUS will provide Ohio businesses with much-needed regulatory certainty by accurately reflecting the jurisdictional limits that Congress, as clarified by the Supreme Court, envisioned under the CWA.