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EPA, Army Corps of Engineers unveil new WOTUS proposal

On Nov. 17, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers announced a proposed rule that would establish what the agencies call “a clear, durable, common-sense definition of ‘waters of the United States’ (WOTUS) under the Clean Water Act.”

The proposal, unveiled at EPA headquarters in Washington, D.C., follows the 2023 Supreme Court decision in Sackett v. EPA.

According to the EPA, 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.

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 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 heard from Americans across the country who want clean water and a clear rule. No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a Water of the United States is on their property.”

“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.”

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. Having a durable, consistent, and clear definition of WOTUS is essential to lowering costs for Americans and accelerating economic growth while protecting human health and the environment.

The proposed rule is scheduled to be published in the Federal Register on Nov. 20 and open for public comment for 45 days. The unpublished version can be viewed here.

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