The Administration has released a new Waters of the U.S. (WOTUS) rule that is designed to reduce the regulatory overreach that previous versions have empowered.
Under the new rule, the definition of what constitutes a WOTUS is made consistent with the Supreme Court’s 2006 decision in Rapanos v. United States. Under that decision, wetlands adjacent or near larger covered water bodies would also be covered only if sharing a continuous surface connection. Therefore, smaller channels that carry water intermittently or “ephemerally” would be excluded.
The Environmental Protection Agency is seeking comments on the rule for a 60-day period. It is anticipated that this revision will be the subject of further litigation by activist environmental organizations.