On December 11, 2018, USEPA and the Army Corps of Engineers proposed a new rule defining “water of the United States” (WOTUS) subject to USEPA/Army Corps jurisdiction under the Clean Water Act. The proposed rule would replace the 2015 WOTUS rule, which has been the subject of litigation across the country, with a more narrow WOTUS definition. Specifically, the new proposed rules defines 6 categories of waters subject to USEPA/Army Corps jurisdiction:
• Traditional navigable waters
• Tributaries to those navigable waters, meaning perennial or intermittent rivers and streams that contribute flow to a traditional navigable water in a typical year
• Certain ditches, such as those used for navigation or those affected by the tide
• Certain lakes and ponds that are similar to traditional navigable waters or that provide perennial or intermittent flow in a typical year to a traditional navigable water
• Impoundments such as check dams and perennial rivers that form lakes or ponds behind them
• Wetlands that abut or have a direct hydrologic surface connection to another water in the U.S.
Notably, the proposed rule clarifies that WOTUS does not include water features that flow only in response to precipitation, several types of ditches, and stormwater control features, among others.
A pre-publication version of the proposed WOTUS rule can be accessed here. The agencies will take comment on the proposal for 60 days after publication in the Federal Register.