The EPA has recently proposed a rule that would establish a more limited definition of “waters of the United States” (WOTUS) under the Clean Water Act.
U.S. Environmental Protection Agency (EPA) recently announced a proposed rule that would establish a more limited definition of “waters of the United States” (WOTUS) under the Clean Water Act. The proposal follows the Supreme Court’s 2023 Sackett decision, which ruled that wetlands can be regulated only under the Clean Water Act if they have a continuous surface connection to larger, regulated bodies of water.
Maryland Background:
For counties that operate infrastructure that discharges into a body of water without a continuous surface connection (i.e., a stream that may run dry at various times of the year), the Sackett ruling raised questions about which federal regulations would still apply to those facilities. Significantly, the Sackett decision did not interfere with the state’s ability to regulate these water bodies. In response to the Sackett decision, the General Assembly passed the Clean Water Justice Act of 2024. Counties initially opposed the bill as drafted, citing that it extended far beyond the upstream waterways affected by the federal court decision, and could have granted a large universe of stakeholders opportunities to object to nearly any development or building project that required a permit or extended water/wastewater services. While the scope of the legislation was significantly amended, the final bill enshrined in state law a dramatic new right for residents to sue certain parties for certain water violations.
Highlights of the Proposed EPA Rule
- Defining key terms like “relatively permanent,” “continuous surface connection,” and “tributary” to appropriately delineate the scope of WOTUS consistent with the Clean Water Act and 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, which means that they must touch a jurisdictional water and hold surface water for a requisite duration year after year;
- Strengthening state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources;
- Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems; Adding a new exclusion for groundwater; and
- Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS;
- In addition, the limitation to wetlands that have surface water at least during the wet season and abut a jurisdictional water will further limit the scope of permafrost wetlands that are considered to have a continuous surface connection under the proposed rule. These proposed changes are intended to provide clarity and consistency to the continuous surface connection definition.
Looking Ahead
Looking out over the short- to medium-term, Annapolis observers can expect any federal action to weaken environmental protections to be met with proposed statewide backstops. Currently, this is a proposed rule, which means it still has to go through a months- to years-long process to be finalized. Its introduction may be enough to push for state action this session, but if it is finalized, there will almost surely be debate on legislation the following session.