EPA and the Army Corps of Engineers are seeking additional comment on their proposed "waters of the U.S." (WOTUS) rule by suggesting new definitions for critical terminology. The agencies proposed the new WOTUS rule in November and received more than 22,000 comments, most seeking further clarification.
The new supplemental proposal suggests tightening the definitions of "relatively permanent" waters and "continuous surface connection" and adding a new definition of "perennial." Most notably, "relatively permanent" waters would be limited to "perennial" waters, meaning those with standing or continuously flowing water every day of the year under ordinary conditions, subject to limited exceptions.
The supplemental proposal also states that a body of water "does not lose its relatively permanent status if it dries up as a result of anomalous events such as drought or dry spell. A body of water also does not lose its relatively permanent status if it dries up for no more than a single period of up to 30 consecutive days in any given year as a result of non-anomalous events resulting in a temporary interruption such as low tide or a regularly occurring dry spell."
The agencies also propose to define "perennial" as "having standing or continuously flowing water every day of the year during ordinary conditions."
The WOTUS proposal is intended to adhere to the 2023 Supreme Court's direction in Sackett v. EPA that limited the federal government's jurisdiction over waters and wetlands covered by the Clean Water Act. This definition, EPA and the Corps said in the proposal, "is consistent with the common hydrologic understanding of the term 'perennial.'" They said drought "would be one type of anomalous event that would allow a normally jurisdictional water to remain jurisdictional in the absence of year-round flow."
The Supreme Court's 2023 Sackett decision held that "the [Clean Water Act] extends to only those wetlands that are 'as a practical matter indistinguishable from waters of the United States.'" The definition has significant impacts for permitting requirements on construction, farming, conservation and development projects.