Public comment period open for updated definition of ‘Waters of the United States”

The proposed rule for the “Updated Definition of Waters of the United States” shows a drastic and detrimental rollback of federal clean water protections pertaining mainly to Wetlands. This rule as proposed would abandon decades of scientific research and environmental regulation. Driven by the Supreme Court’s Sackett v. EPA decision, the proposal does not provide clarification but is a failure to protect clean water resources.

1. Changes to Jurisdictional Categories

Traditional Navigable Waters and Territorial Seas will remain Jurisdictional
Most Impoundments of WOTUS will remain Jurisdictional.
Only Tributaries that meet the newly defined “relatively permanent” definition are considered jurisdictional.
Only Wetlands that meet the “Continuous Surface Connection” test are Jurisdictional.
Lakes and Ponds that are “relatively permanent” and have a “Continuous Surface Connection” are considered Jurisdictional.

2. New and Technical Definitions

Relatively Permanent: Bodies of water that are standing or continuously flowing year-round or at least during the wet season. Which excludes ephemeral streams (streams which only flow in response to precipitation events) and limits intermittent streams to only those that flow for the duration of the wet season
Continuous Surface Connection: For adjacent wetlands there are two conditions which must be met 1) the wetland must abut a jurisdictional water, and 2) it must have surface water during at least the wet season. Which excludes wetlands that are separated from jurisdictional waters or those which lack surface water during the wet season
Tributary: A Body of water with relatively permanent flow, a bed and a bank, that connects to downstream Traditional Navigable Waters or a Territorial Sea, either directly or through features which show a relatively permanent flow. This excludes tributaries whose flow is not “relatively permanent” or whose connection is interrupted by a stretch considered not “relatively permanent”

3. Changes to Jurisdictional Exclusions

Interstate Waters (Independent Basins): The entire category of “Interstate Waters” would be removed as a basis for CWA jurisdiction. These waters must now meet the criteria of another category to be considered Jurisdictional.
Groundwater: This rule adds an explicit exclusion for groundwater including groundwater that is drained through subsurface drainage systems.
Ditches:The exclusion of ditches is clarified to include all ditches, including roadside ditches, even if they have a relatively permanent flow and connect to a jurisdictional water.
Prior Converted Cropland: The exclusion remains for Prior Converted Cropland but the updated definitions say that Prior converted cropland loses its exclusion once it is abandoned for agricultural purposes for at least five years and has since reverted back to wetlands. The definition for agricultural purposes is broad.

4. Implications for Watershed Protection

Separation of federal and state law for hydrological connectivity: This proposed rule shows a significant shift away from the “Significant Nexus” , a science-based theory which says that jurisdiction can be based on the reality that upstream waters affect downstream River health. By moving to a “relatively permanent” and “continuous surface connection” standard the rule effectively removed federal protections from ephemeral headwaters and non-abutting wetlands. For a major River system such as the St. Lawrence, this means that while the main River will remain protected under the Traditional Navigable Water category, the network of small, seasonal streams and isolated wetlands which filter runoff and regulate flow into the River may no longer be federally protected by the CWA.
By narrowing the federal “floor” of protection, the proposed rule transfers the responsibility for protecting excluded waters such as seasonal streams and wetlands separated by man-made barriers entirely to state authorities. This increases the reliance on state-level enforcement capacity and state specific wetlands laws to prevent degradation that was previously managed through a federal-state partnership

To submit your comment and read the full text of the proposed changes click the link below

The Federal Register: Updated definition of WOTUS

*For a public comment template, email outreach@savetheriver.org*