Proposed EPA Rule Seeks to Limit Federal Oversight of Non-Navigable Waters

The Environmental Protection Agency (EPA) on Nov. 17 unveiled a proposed rule that would trim federal regulatory oversight of the nation’s non-navigable waters under the Clean Water Act, a revision conceding that “states and tribes know their local land and water resources best.”

When finalized, the EPA said the revised rule “will cut red tape and provide predictability, consistency, and clarity for American industry, energy producers, the technology sector, farmers, ranchers, developers, businesses, and landowners for permitting.”

The proposed rule would revise the Waters of the United States regulations imposed in the 1972 amendments to the Clean Water Act. The amendments established federal jurisdiction over “navigable waters,” a relatively simple concept similar to regulating interstate commerce that, in recent decades, has become a source of much litigation over exactly which waters are subject to such oversight.

“When it comes to the definition of ‘Waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” EPA Administrator Lee Zeldin said during a press conference at the agency’s Washington headquarters.

He said the revised rule will comply with the U.S. Supreme Court’s 2023 Sackett v. EPA ruling that limited federal jurisdiction over wetlands adjacent to navigable waters, intermittent streams, irrigation ditches, and flood control channels.

“Democrat Administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families,” Zeldin said. “No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a ‘Water of the United States’ is on their property.”

The proposed rule will be published in the Federal Register and open for public comment for 45 days before being implemented. Among the proposed revisions are:

• Defining key terms, including “relatively permanent,” “continuous surface connection,” and “tributary” to “appropriately delineate the scope of WOTUS consistent with the Supreme Court precedent.”
• Establishing that jurisdictional tributaries must “connect to traditional navigable waters” either directly or through other features “that provide predictable and consistent flow.”
• Reaffirming that wetlands must be “indistinguishable from jurisdictional waters through a continuous surface connection.”
• Providing clear regulatory guidelines for state and tribal authority by “recognizing their expertise in local land and water resources.”
• Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems. Ephemeral streams—those that have water only after rain or snowfall—would not be eligible for protection.
• Adding a new exclusion for groundwater.

“In recent decades, the regulatory uncertainty caused by changing and complicated definitions of Waters of the United States unduly burdened the American people and undermined our nation’s economic competitiveness,” said Assistant U.S. Army Secretary Adam R. Telle, who oversees the U.S. Army Corps of Engineers.

“Now, we are proposing a definition that follows the law as affirmed by the Supreme Court and will deliver the clear and durable regulatory certainty Americans deserve from the federal government.”

American Farm Bureau Federation President Zippy Duvall said the revised rule is welcomed by the nation’s farmers, who have been, in some cases, restricted from tapping into waters on their own land.

“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines,” he said. “We are still reviewing the entire rule, but we are pleased that it finally addresses those concerns and takes steps to provide much-needed clarity.”