On December 11, the Environmental Protection Agency and the Department of the Army released their proposed definition for Waters of the United States (WOTUS) that are federally regulated under the Clean Water Act. The proposal includes “traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters” which would be federally regulated. The new definition would apply to intermittent or perennial areas that contribute a surface water connection to navigable waters in a typical rainfall year. It also explicitly outlines what does not meet the definition of Waters of the U.S. including, “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.”

“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 in a statement. “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.”

Some conservation organizations are calling the proposed definition change a rollback of Clean Water Act protections. Collin O’Mara, president and CEO of the National Wildlife Federation stated: “Healthy streams and wetlands are essential for people and wildlife. This action will significantly roll back Clean Water Act protections—allowing a few to cut corners while increasing the risks to wildlife and to the drinking water for millions of Americans.

The proposal is open for comment for 60 days after publication in the Federal Register. Comments can be submitted through the Federal eRulemaking Portal using Docket ID No. EPA-HQ-OW-2018-0149. In addition, the EPA and the Army will hold an informational webcast on January 10, 2019, they will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.