The Environmental Protection Agency and the Army Corps of Engineers on November 17 unveiled a proposed rule to revise the definition of “waters of the United States” (WOTUS) under the Clean Water Act.
WOTUS is a key term in the CWA that determines the jurisdictional reach of the Act. The new proposed definition expands on the previous administration's September 2023 regulatory changes, which were designed to align the WOTUS definition with the Supreme Court's ruling in Sackett v. EPA, 598 U.S. 651 (2023).
The agencies said that the proposed rule seeks to accomplish three major tasks.
• First, to respond to the U.S. Supreme Court’s decision in Sackett v. EPA, which clarified and limited the scope of federal jurisdiction over waters. The court ruling found that CWA jurisdiction applies to wetlands with a continuous surface-water connection to a relatively permanent body of water.
• Second, to remove red tape, bringing down the cost of doing business and the cost of living for Americans.
• Third, to protect water quality by striking a balance between federal and state authority, recognizing that states and tribes are in the best position to manage their local land and water resources.
At a high level, the major proposed changes include:
• Revise the definition of WOTUS to include 1) traditional navigable waters and the territorial seas; 2) most impoundments of WOTUS; 3) relatively permanent tributaries of traditional navigable waters, the territorial seas, and impoundments; 4) wetlands adjacent (i.e., having a continuous surface connection) to traditional navigable waters, impoundments, and tributaries; and 5) lakes and ponds that are relatively permanent and have a continuous surface connection to a traditional navigable water, the territorial seas, or a tributary;
• Removal of the interstate waters category from the definition of WOTUS to ensure consistency with Sackett.
The Agencies proposes to remove this category after finding it can encompass bodies of water that are not relatively permanent, standing, or continuously flowing or that are not themselves connected to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.
The Agencies are also proposing to amend the exclusions for waste treatment systems, prior converted cropland, and certain ditches, and add an exclusion for groundwater.
Maintain the waste treatment systems exclusion
EPA is proposing to add a definition for ‘waste treatment system’ and clarifications as to which waters and features are considered part of a waste treatment system and therefore excluded. EPA defines ‘waste treatment systems’ as including “all components of a waste treatment system designed to meet the requirements of the Clean Water Act, including lagoons and treatment ponds (such as settling or cooling ponds), designed to either convey or retain, concentrate, settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to discharge (or eliminating any such discharge).”
Clarify and define the ditch exclusion
The Agencies define ‘ditches’ as “a constructed or excavated channel used to convey water.” Additionally, EPA clarifies that ditches (including roadside ditches) that are constructed or excavated entirely in dry land are not WOTUS.
Addition of an exclusion for groundwater
The proposal excludes groundwater from the definition of WOTUS including groundwater drained through subsurface drainage systems. The Agencies are codifying their longstanding position that groundwater has never fallen within the scope of navigable waters under the CWA.
Definition of key terms, the Agencies also propose to:
• Define ‘continuous surface connection,’ as “having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.”
• Define ‘relatively permanent,’ as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year round or at least during the wet season.”
• Define ‘tributary,’ as “a body of water with relatively permanent flow, and a bed and bank, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.”
New tool to identify the ‘wet season’
The Agencies are introducing the Web-based Water-Budget Interactive Modeling Program (WebWIMP) as a tool for identifying the wet season. The metric has previously been employed by the Corps in conducting wetland delineations and jurisdictional determinations. The proposed regulations do not define "wet season," but note that its length and timing vary by geographic location. Multiple factors—climate, hydrology, topography, soils, and other conditions—determine what constitutes a wet season in different regions.
The agencies interpret "at least during the wet season" to mean extended periods of predictable, continuous surface flow that recur annually in the same geographic feature during wet conditions, such as when monthly precipitation exceeds evapotranspiration. Under the proposed rule, surface hydrology must remain continuous throughout the entire wet season.
Indirect Cost Savings
The Agencies anticipate indirect cost savings from this deregulatory action. The Agencies expect that the proposed rule would result in an increase in non-jurisdictional findings in approved jurisdictional determinations compared to prior regulations and practice, and that, compared to the baseline, the proposed rule would define fewer waters and wetlands as within the scope of the CWA.
EPA also anticipates the CWA section 404 program will be impacted by this rulemaking, resulting in a reduction in the number of permits and required mitigation.
Next Steps
Once the proposed rule is published in the Federal Register, there will be a 45-day comment period.
The Agencies anticipate issuing a final rule early next year.
In the interim, the Agencies will hold two in-person public meetings, with the option to participate virtually. Information about registering will be posted to this webpage shortly.
EPA is seeking feedback on the proposed definitions and any potential alternative definitions; methods to improve predictability in making jurisdictional determinations; the proposed metric for the wet season; the proposed changes to exclusions; the proposed approaches for implementation; and any data that can be used to inform the Regulatory Impact Analysis.
APPA plans to submit comments and welcomes member feedback on any key points that should be addressed and will also prepare a more in-depth summary of the proposal, which will become available shortly.
Take Away
The proposed rule advances the Agencies' September 2023 Sackett implementation by defining key terms and excluding interstate waters that don't independently satisfy the Supreme Court's WOTUS test. However, the revisions introduce new interpretive challenges, including determining what constitutes a "wet season" and how drought periods affect jurisdictional assessments.
