This week U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin, together with Assistant Secretary of the Army for Civil Works Adam Telle, announced a proposed rule that would establish a clear, durable, common-sense definition of “waters of the United States” (WOTUS) under the Clean Water Act. The proposal follows the Supreme Court decision in Sackett. The agencies developed this proposed 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. Including comments submitted by the Association in 2022 seeking clarification and appropriate definitions to what is navigable. 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; and
• 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 finalized, the rule is intended to cut red tape and provide predictability, consistency, and clarity for permitting under the Clean Water Act. “In recent decades, the regulatory uncertainty caused by changing and complicated definitions of Waters of the United States unduly burdened the American people and undermined our nation’s economic competitiveness,” said Assistant Secretary Telle.  “Now, we are proposing a definition that follows the law as affirmed by the Supreme Court and will deliver the clear and durable regulatory certainty Americans deserve from the federal government.”  The definition of WOTUS influences Clean Water Act implementation, including whether farmers, landowners, and American businesses must secure permits before they can pursue projects that might impact surface water quality. The proposed rule will be published in the Federal Register and open for public comment for 45 days. EPA and the Army will host two hybrid public meetings.