The Trump Administration this week announced the release of revised regulations determining which wetlands and other bodies of water qualify as a Water of the United States and are therefore subject to federal permit requirements before construction and other land improvement activities can proceed. The rules will be jointly issued by the EPA and the Army Corps of Engineers establishing, according to an EPA release, a “durable, common-sense definition of ‘water of the United States’” under the Clean Water Act. The rule seeks to codify the Supreme Court’s 2023 Sackett v. EPA decision which found that “adjacent wetlands” under the law are those wetlands that have a continuous surface connection to bodies already considered "waters of the United States.” The wetlands must be “indistinguishable” from those waters to be considered jurisdictional.
In the past, various administrations have advanced WOTUS definitions that have been the subject of endless litigation, leaving farm, construction and development projects without a clear picture of the scope of responsibilities under the law. According to EPA, the new proposal would define terms such as “relatively permanent,” “continuous surface connection,” and “tributary” “to appropriately delineate the scope of WOTUS consistent with the Clean Water Act and Supreme Court precedent.” In addition, “jurisdictional tributaries must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow,” the release says. The proposal also looks to give states and tribal authorities “clear regulatory guidelines while recognizing their expertise in local land and water resources.”
American Farm Bureau Federation President Zippy Duvall commented, “Clean water is a top priority for farmers and ranchers – we depend on it. We are pleased that the new rule protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with.
“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines. We are pleased that it finally addresses those concerns and takes steps to provide much-needed clarity.”
Once published in the Federal Register, the proposal will be open for public comments for 45 days. EPA and the Corps plan to hold joint public hearings.