Redefining WOTUS – why you should care
Date Posted: 01/31/2022
Employers must understand the potential impact any changes to the definition “Waters of the United States” (WOTUS) may have on their facility. The current proposed redefinition would change the interpretation of activities and water discharges. Knowing ahead of time how this change could or would apply to your facility will assist in avoiding potential violations, hefty fines, and liability.
In February 2022, the Environmental Protection Agency and Army Corps of Engineers will end the public comment/hearing process regarding the WOTUS definition. If the definition is changed, the following may be added back into the regulations:
- Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands.
- Most impoundments of WOTUS.
- Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard.
- Wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard.
- “Other waters” that meet either the relatively permanent standard or the significant nexus standard.
The ‘significant nexus standard’ includes waters that have the potential to negatively impact downstream navigable waters and could include intermittent streams or waters that flow only after rains. While not well defined in its current state, the EPA will incorporate language in this proposed redefining of WOTUS to include clarification of the meaning of ‘significant nexus’.
Many regulatory programs that fall under the scope of the Clean Water Act (CWA) only apply when there is the possibility of impacting a water of the United States. CWA programs that rely on the definition of WOTUS, and what that could mean for you, include:
- Oil Spill Prevention and Response programs (SPCC and FRPs) – Section 311
- You may now need an SPCC Plan, where you didn’t before!
- National Pollutant Discharge Elimination System (NPDES) – Section 402
- You may have discharges that now trigger permitting!
- Dredged and Fill Permit program (wetlands permitting) – Section 404
- Your permit(s) may have additional conditions added!
Until these proposed changes are published in the Federal Register, nothing changes. But that doesn’t mean you can’t be prepared. Safety Management Suite can help you become familiar with the CWA, and WOTUS, and ways both may impact your facility should these changes take effect.
How Safety Management Suite Can Help
To learn more about the Clean Water Act and WOTUS, along with the various associated programs and permits, use the RegSense search function in the J. J. Keller® SAFETY MANAGEMENT SUITE. Search for key phrases, such as “SPCC”, “NPDES”, “CWA”, and “waters of the United States” for more information.
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