On Tuesday, December 11, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed a new definition of “waters of the United States” that they believe clarifies federal authority under the Clean Water Act and replaces the 2015 rule that was made under former President Barack Obama. According to EPA Acting Administrator Andrew Wheeler, the definition is simpler and clearer and will help a landowner understand whether a project on his property will require a federal permit or not.

“For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways,” Wheeler said.

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 February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

The proposed rule would provide clarity, predictability and consistency so the regulated community can understand where the Clean Water Act applies and where it does not, the agencies said. 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 said this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources. States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States,” they said. The proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters, the EPA said.

“States have an important role in safeguarding land and water resources, and the EPA and the Corps’ newly proposed WOTUS definition restores the proper balance between state and federal environmental protections outlined in the U.S. Constitution and the Clean Water Act,” National Mining Association President and CEO Hal Quinn said.

American Exploration & Mining Association (AEMA) Executive Director Laura Skaer echoed those same sentiments. “Today’s release of a new water rule is an encouraging next step in the decades-long push for a WOTUS definition that empowers communities to protect their own water resources while providing regulatory clarity for our members,” she added. “Today’s announcement lays to rest the illegal federal overreach of the Obama-era WOTUS rule.”

The EPA and the Corps are also exploring ways the agencies can work with federal, state, and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters.

There will be a 60-day comment period on the proposed rule. An informational webcast will also be held on January 10, 2019, as well as a listening session on the proposed rule in Kansas City, Kansa, on January 23, 2019.

More information including a pre-publication version of the Federal Register notice, the supporting analyses and fact sheets are available at www.epa.gov/wotus-rule.