Plugging Holes in the Clean Water Act: EPA and ACOE Release their Proposed Replacement Rule Defining “WOTUS”

On December 11, 2018, the United States Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE) announced proposed changes to the agencies’ definition of “waters of the United States” (WOTUS). This definition, conspicuously absent in the Clean Water Act (CWA), determines when point source discharges require CWA National Pollutant Discharge Elimination System (NPDES) permits from the EPA and delegated states, when dredging and other filling of wetlands require CWA §404 permits from ACOE, and when agencies and environmental groups can assert claims alleging violations of these permit programs or other CWA liability, such as payment of spill response costs and penalties.