EPA, Army release proposed new waters of the U.S. definition

The U.S. Environmental Protection Agency and the Army Corps of Engineers on Dec. 11 unveiled a proposed new “waters of the United States,” or WOTUS, definition that clarifies federal authority under the Clean Water Act.

“Unlike the Obama administration's 2015 definition of ‘waters of the United States,’ today’s proposal contains a straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development,” the EPA said in a news release.

The agencies noted that their proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with a February 2017 executive order signed by President Trump.

The executive order said that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

The agencies said their proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies and where it does not.

Under the proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.

The proposal also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.

The EPA and the Department of the Army believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources.

States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.”

The agencies’ proposal “gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act,” the EPA said in the news release.  

In response to requests from some states, EPA and the Army are exploring ways the agencies can work with our federal, state, and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on Jan. 10, 2019 and will host a listening session on the proposed rule in Kansas City, Kan., on Jan. 23, 2019.

The proposal is available here.

Final rule to redefine waters of the U.S. issued in May 2015

In May 2015, the EPA and the U.S. Army Corps of Engineers released a final rule to redefine the definition of waters of the U.S. under the Clean Water Act. The rule became effective on Aug. 28, 2015.

The American Public Power Association believes that the 2015 WOTUS rule is problematic because it dramatically expanded the definition of WOTUS, thereby subjecting more utility projects and activities to Clean Water Act jurisdiction.

The 2015 rule is in effect in twenty-two states while the pre-2015 regulation remains in place for the other twenty-eight states, which is due to a stay issued during litigation.