The Environmental
Protection Agency (EPA) and Army Corps of Engineers have officially released a
revised definition of “Waters of the United States” (WOTUS) which determines
the scope of federal regulation under the Clean
Water Act (CWA). The comment period for the revision will be open until
April 15, 2019. The revised definition and comment submission information can
be accessed here. 

What would the redefinition do?

The redefinition
would create six categories of regulated waters and eleven categories of
exempted waters.

The six categories that would be regulated:

1. Traditional
   navigable waters, including the territorial seas;
   1. The
      previously separated categories of “navigable waters” and “territorial seas”
      would be merged, but regulation of these waters would not be altered.
2. Tributaries
   that contribute perennial or intermittent flow to such waters;
   1. Tributaries
      would not include any surface features that only flow as the result of
      precipitation. Ephemeral flows like dry washes and arroyos would be excluded.
3. Certain
   ditches;
   1. Only
      ditches that also satisfy the conditions of the tributary definition, and
      ditches constructed in an adjacent wetland would be included. 
4. Certain
   lakes and ponds;
   1. Lakes
      and ponds that satisfy the conditions of traditional navigable waters would be
      included.
   1. Lakes
      and ponds that contribute a perennial or intermittent flow to other
      jurisdictional waters would also be included.
5. Impoundments
   of otherwise jurisdictional waters; and
   1. The
      redefinition would not alter the regulation of impoundments.
6. Wetlands
   adjacent to other jurisdictional waters.
   1. Wetlands
      would satisfy the requirement of adjacency if they “abut” or have a “direct
      hydrological surface connection” with other jurisdictional waters.

The eleven categories of waters that would be exempted:

1. Waters
   or water features that are not identified in the six categories of regulated
   waters.
2. Groundwater,
   including groundwater drained through subsurface drainage systems.
3. Ephemeral
   features and diffuse stormwater run-off.
4. Certain
   ditches.
5. Prior
   converted cropland.
6. Artificially
   irrigated areas that would revert to upland if artificial irrigation ceases.
7. Certain
   artificial lakes and ponds constructed in upland.
8. Certain
   water-filled depressions created incidental to mining or construction activity
   and pits excavated for the purpose of obtaining fill, sand, or gravel.
9. Stormwater
   control features excavated or constructed in upland to convey, treat,
   infiltrate, or store stormwater run-off.
10. Wastewater
    recycling structures constructed in upland.
11. Waste
    treatment systems.

The background of WOTUS

The definitions of
“Navigable Waters” and “Waters of the United States” have changed multiple
times since the creation of the CWA in 1972. The most recent redefinition
occurred in 2015 and expanded CWA scope, including increased jurisdiction
regarding ephemeral water features and water features adjacent but lacking
direct hydrological connections to jurisdictional waters.

Source: Environmental Protection Agency

Since its introduction, the 2015
definition has faced litigation regarding its validity under the
Constitution and the CWA. As a result, the
rule has been blocked in 28 States and is
currently only recognized in 22 States, the District of Columbia, and
U.S. Territories. In states where the 2015 rule is blocked, the EPA’s
less-inclusive 1988
definition of “Waters of the United States” remains in effect.

On February 28,
2017, President Trump signed the Executive Order “Restoring
the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of
the United States’ Rule.”
This order began the process of developing the currently proposed redefinition.
The intention of this redefinition as stated in the Executive Order is “to
ensure that the Nation’s navigable waters are kept free from pollution, while
at the same time promoting economic growth, minimizing regulatory uncertainty,
and showing due regard for the roles of the Congress and the States under the
Constitution.”

The official
revised WOTUS definition was released on February 14, 2019 and the comment
period on the rule will be open until April 15, 2019. The latest fact sheets,
infographics, supporting documents, information on the revision can be accessed
here on the
EPA’s website.