Proposed redefinition of "waters of the United States" published

On December 7, 2021, a proposed rule redefining “waters of the United States” (referred to as WOTUS) was published in the Federal Register. EPA and the Department of the Army (“the agencies”) are publishing the proposed rule to clearly define the scope of waters that are protected under the federal Clean Water Act. The draft rule proposes to put back into place the pre-2015 definition of WOTUS, with updates to address more recent Supreme Court decisions. On the program website EPA claims that the change brings back a familiar approach to WOTUS while building a path for its “stable implementation.”

In this proposed rule, the agencies have gone back to the WOTUS definition first implemented in the 1986 regulations. With one noticeable change, the incorporation of the determination of the statutory limits on the scope of WOTUS, informed by Supreme Court precedent. The proposal has WOTUS including:

1. Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands.
2. Most impoundments of WOTUS.
3. Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard or the significant nexus standard.
4. Wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard.
5. “Other waters” that meet either the relatively permanent standard or the significant nexus standard.

The draft rule closed for public comment on February 7, 2022, with three virtual public hearings held before that date.

Key to remember: The proposed redefinition of WOTUS changes the interpretation of activities and water discharges that will require various Clean Water Act permitting.