The U.S. Environmental Protection Agency and the U.S. Department of the Army announced on December 30, 2022, their final rule establishing a new definition of “waters of the United States”
(“WOTUS”).
WOTUS defines the water bodies that will fall under federal jurisdiction, making them subject to the Clean Water Act. The National Groundwater Association writes, “The final WOTUS rule published by the agencies expands federal jurisdiction over various bodies of water and tributaries that may have a hydrological impact on navigable waters or water that has been traditionally defined under WOTUS. These include creeks, marshlands, and some rivers and lakes across the United States.”
In its press release, the EPA gave the following background:
On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of “waters of the United States” to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. On Nov. 18, 2021, the agencies announced the signing of a proposed rule revising the definition of “waters of the United States.”
The Clean Water Act prohibits the discharge of pollutants from a point source into “navigable waters” unless otherwise authorized under the Act. “Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by the agencies in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.
Despite groundwater not explicitly included in the new definition of WOTUS, the National Groundwater Association writes that it remains concerned about the expanding federal jurisdiction. “I’m hesitant to call this an all-out victory,” said NGWA Public Relations and Government Affairs Manager Ben Frech. “As expected, this new rule represents a growing interest by the federal government to become more involved in the management of groundwater and how it might impact other bodies of water, which is a great concern for much of our industry.”
The American Farm Bureau is not enthusiastic, either, writing that the rule creates more confusion for farmers and ranchers, raising similar concerns about the expanding federal jurisdiction.
The rule will be effective 60 days after it is published in the Federal Register. More information is available at the EPA’s WOTUS website.
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