EPA and Army proposal aims to clarify U.S. waters definition

Regulators hope to clearly define federal authority and jurisdiction under the Clean Water Act.

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December 28, 2018
Edited by Jimmy Miller

WASHINGTON  — The U.S. Environmental Protection Agency and the Department of the Army have proposed new definitions of “waters of the United States” in an effort to clarify federal authority under the Clean Water Act.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.” 

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Donald Trump's executive order from 2017 entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” 

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation's waters.”

Under the agencies’ 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. It 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; stormwater control features; and waste treatment systems.

The agencies invited written pre-proposal recommendations and received more than 6,000 recommendations that the agencies have considered in developing this proposal. 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 and will host a listening session on the proposed rule in Kansas City, KS, on Jan. 23.