PROPOSED RULE
Title: Revised Definition of “Waters of the United States”
Docket ID: EPA-HQ-OW-2018-0149
Agency: EPA, DOD - Army Corps of Engineers
Comments Close: April 15, 2019
Illustration of waters covered under the EPA and Army Corps proposed definitions of “Waters of the United States.” From EPA social media page
The Environmental Protection Agency and the Army Corps of Engineers propose to revise regulatory definitions of “waters of the United States” under the Clean Water Act. In the revised definition, the agencies interpret “waters of the United States” to encompass: ‘Traditional navigable waters, including the territorial seas; tributaries that contribute perennial or intermittent flow to such waters; certain ditches; certain lakes and ponds; impoundments of otherwise jurisdictional waters; and wetlands adjacent to other jurisdictional waters.’
The agencies are seeking public comment at various points of the proposed ruling, including comments on definitions, scope, and interpretations of the terms:
“traditional navigable waters,”
“interstate waters,”
“impoundments,”
“tributaries,”
“ditches,”
“lakes and ponds,”
“wetlands,” and
waters that will be excluded from the definition of “waters of the United States.”
In addition, the agencies seek examples of jurisdictional determinations that would improve clarity and consistency in regulations.
Figure 2. Overview of potential environmental impacts of proposed definition of “waters of the United States” under the Clean Water Act. Taken from ‘Economic Analysis for the Proposed Revised Definition of "Waters of the United States".’ Published December 14, 2018 by U.S. Environmental Protection Agency and Department of the Army
Groups in favor of the revised “waters of the United States” (WOTUS) definition believe it sufficiently protects water resources and is more consistent with the statutory and legislative history of the Clean Water Act prior to the 2015 Clean Water Rule.
Additional Links (For):
Groups against the revised WOTUS definition believe it does not sufficiently protect our water resources, ignores science-based information regarding connectivity of surface waters, and weakens regulatory authority under Clean Water Act.
Additional Links (Against):
The definition of “waters of the United States” (WOTUS) is significant because waters included under the definition are protected by the Clean Water Act. The definition has potential implications for drinking water, public health, fisheries, and wildlife habitat. This definition has changed several times since the Clean Water Act was established (see timeline below).
The proposed definition of “waters of the United States” (WOTUS) is meant to replace a definition put forward in a 2015 ruling. The 2015 ‘Waters of the United States’ Rule revised the definition of WOTUS to reduce regulatory uncertainty by clarifying which waters are subject to Clean Water Act protection. Following publication, many groups challenged the 2015 ‘Waters of the United States’ Rule:
“…state and industry petitioners raised concerns about whether the 2015 Rule violated the Constitution and the [Clean Water Act], and whether its promulgation violated the [Administrative Procedure Act] and other statutes.”
“Environmental petitioners also challenged the 2015 Rule, claiming that the 2015 Rule was too narrow.”
As of February 2018, the 2015 Rule has been implemented in 22 states and blocked in 28 states through district court rulings.
In 2017, President Trump signed the Executive Order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the [2015] `Waters of the United States' Rule.” The Executive Order calls for a review of the 2015 ‘Waters of the United States’ Rule by the EPA and the Army Corps, and specifically requested that the agencies reconsider the 2015 Rule’s definition of “navigable waters.”
The current proposed rule is the second part of the EPA’s two-step plan implemented in response to the 2017 Executive Order. Step One of the EPA’s plan, termed “Repeal,” culminated in a 2018 rule which stated that the 2015 WOTUS definition would not be applicable until February 6, 2020. This delay was established to give ‘the agencies the time needed to reconsider the definition of “waters of the United States.”’ The second step of the process, termed “Revise,” will re-define WOTUS in order to clarify “the federal authority under the Clean Water Act” (EPA, WOTUS Rulemaking Webpage).
Evolution of the current definition of "waters of the United States"
For an extended description of key court cases and rulemakings leading up to the 2015 “Waters of the United States” Rule, see our Step One: Repeal summary.
Congressional Research Service
Contributor: PhD Student, Freshwater Ecology
