EPA, Army Corps unveil WOTUS proposal

WASHINGTON — The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule revising the regulatory definition of “waters of the U.S.” intended to resolve the regulatory uncertainty regarding the scope of federal jurisdiction.

The agencies are soliciting comments on the proposed rule, which are due 45 days from the proposed rule’s publication in the Federal Register.

The proposal, released Nov. 17, aligns with the U.S. Supreme Court’s Sackett vs. EPA decision that limits Clean Water Act protections to wetlands with a continuous surface connection to navigable waters.

The agencies developed this proposed WOTUS rule using input from multiple sources, including a pre-proposal recommendations docket, information from nine public listening sessions and consultation comments from states, tribes and local governments.

Key proposed revisions include:

• Defining key terms like “relatively permanent,” “continuous surface connection” and “tributary” to appropriately delineate the scope of WOTUS consistent with the Clean Water Act and Supreme Court precedent.

• Establishing that jurisdictional tributaries must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow.

• Reaffirming that wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection, which means that they must touch a jurisdictional water and hold surface water for a requisite duration year after year.

• Strengthening state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources.

• Preserving and clarifying exclusions for certain ditches, prior converted cropland and waste treatment systems; adding a new exclusion for groundwater.

• Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS.

• In addition, the limitation to wetlands that have surface water at least during the wet season and abut a jurisdictional water will further limit the scope of permafrost wetlands that are considered to have a continuous surface connection under the proposed rule. These proposed changes are intended to provide clarity and consistency to the continuous surface connection definition.

“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” said EPA Administrator Lee Zeldin.

“We applaud EPA and the Corps’ efforts to bring our nation’s job creators one step closer to relief from years of federal government overreach by offering a clear, durable ‘Waters of the U.S.’ rule. WAC strongly endorses the agencies’ commitment to respect the legal boundaries articulated by the Supreme Court and to restore the balance Congress intended more than 50 years ago when it enacted the Clean Water Act,” said the Waters Advocacy Coalition in a statement.

“The Waters Advocacy Coalition represents America’s job creators who deliver the services families rely on every day, from producing energy, building homes and infrastructure to growing food. These industries need regulations they can understand. We look forward to more closely analyzing the proposal and offering comments to ensure that this rule protects America’s waterways while offering certainty to landowners throughout the country.”

“Clean water is a top priority for farmers and ranchers. We depend on it. We are pleased that the new rule protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with,” said American Farm Bureau Federation President Zippy Duvall.

“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines. We are still reviewing the entire rule, but we are pleased that it finally addresses those concerns and takes steps to provide much-needed clarity. We look forward to providing comments to EPA to ensure farmers can continue to safeguard the environment while growing the food America’s families rely on.”

“The agency’s proposed definition of WOTUS would fully implement the court’s direction by focusing on relatively permanent, standing or continuously flowing bodies of water — such as streams, oceans, rivers and lakes — and wetlands that are connected and indistinguishable from such waterbodies,” said the EPA in a news release.

“It will accelerate economic prosperity by revising, for example, exclusions for certain ditches, prior converted cropland and waste treatment systems and by adding an exclusion for groundwater. The proposal also takes into account seasonal and geographic variability by including waters that flow uninterrupted throughout the wetter months in the proposed definition of ‘relatively permanent’ waters, based on pre-proposal feedback.”

This proposal recognizes that states and tribes know their local land and water resources best, the EPA said. The proposed definition of WOTUS protects water quality by affirming federal protections where appropriate and supporting the role of states and tribes as primary regulators managing their own land and water resources.

Cooperative federalism has been a cornerstone of Clean Water Act implementation and the agency’s proposed WOTUS rule at last fulfills that commitment to real, shared federal and state responsibility, the EPA said.