EPA, Army Corps Announce Proposed Rule for Regulated Waters

Pointing to “five decades of confusing and everchanging definitions,” the EPA and the Army Corps of Engineers announced on Monday another attempt at clarifying the phrase “waters of the United States.”

Lee Zeldin, EPA Administrator: “And I know that across the country, news of today’s proposal is going to be met with lots of relief and happiness from farmers, ranchers, other land owners, governments that have been looking for a simple prescriptive definition.”

Adam R. Telle, Assistant Secretary of the Army for Civil Works: “Since 1972, Americans have struggled to understand what Congress meant when it included ‘Waters of the United States’ in the Clean Water Act. ... The definition of that term has been abused, sometimes stretched beyond recognition, over time, and it’s left Americans uncertain about whether they were complying with the Clean Water Act or not.

Federal officials say their proposal, which addresses the concept of “continuous surface connection,” is consistent with a 2023 U.S. Supreme Court decision.

The proposal addresses the scope of “adjacent wetlands” near regulated “traditional navigable” federal waters. The proposed rule says the water would need to have a continuous surface connection, with both surface water - at least during the wet season - and abutting a regulated body of water.

EPA officials say they recognize that, in some instances, drought or tide flow may need to be considered.

Before the new guidance is implemented, federal officials will seek written feedback and hold listening sessions.

Gov. Patrick Morrisey, Governor, West Virginia: “I’m hopeful that whatever happens with the body politic over the next ten years, that this could be a durable rule because it’s common sense.”

By Colleen Bradford Krantz. colleen.krantz@iowapbs.org