Dive Brief:
- The Environmental Protection Agency and the U.S. Army Corps of Engineers’ proposed new rule redefining “waters of the United States” as a framework for Clean Water Act permitting narrows which wetlands and tributaries fall under federal jurisdiction, adds several exclusions and supports states and tribes as primary regulators of their own water resources, according to the EPA.
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Under the new rule, counties would be responsible for essential water infrastructure, including public safety water conveyances, municipal separate stormwater sewer systems, green infrastructure projects and water reuse systems, according to the National Association of Counties. “The detailed definitions of many terms offered by the 2025 Proposed rule aligns with county needs for consistency,” NACo stated in a Nov. 20 news post.
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National Apartment Association President and CEO Bob Pinnegar stated the new rule “would provide much needed clarity and regulatory relief for developers across the country,” and National Association of Home Builders Chairman Buddy Hughes stated it would “help alleviate federal permitting roadblocks and ensure that more Americans can access affordable homes.”
Dive Insight:
WOTUS defines the geographic reach of the Army Corps’ and EPA’s authority to regulate streams, wetlands and other water bodies under the 1972 Clean Water Act. On May 25, 2023, the U.S. Supreme Court ruled in Sackett v. EPA that WOTUS includes only relatively permanent bodies of water like oceans, lakes, rivers and streams or adjacent wetlands that are “indistinguishable” from those waters because of a continuous surface connection.
The EPA stated its proposed definition of WOTUS “would fully implement the court’s direction” by revising exclusions “for certain ditches, prior converted cropland, and waste treatment systems and by adding an exclusion for groundwater.”
The proposed rule would also exclude “interstate waters” from the WOTUS definition, “meaning that simply being a water that crosses state boundaries would not be enough for a water to be recognized as a WOTUS,” Russell Riggs, senior policy representative, environmental and administrative regulatory reform for the National Association of Realtors, stated in a Nov. 21 post.
“Cooperative federalism has been a cornerstone of Clean Water Act implementation and the agency’s proposed WOTUS rule at last fulfills that commitment to real, shared federal and state responsibility,” EPA said in a press release.
Environmental groups said the proposed rule endangers wetlands and water quality.
“The revised definition will leave these wetlands at risk of further degradation, which could harm the rivers and streams that people in the United States depend on daily for clean water,” Stacy Woods, research director for the Food and Environment Program at the Union of Concerned Scientists, said in a statement. “This change also ignores how wetlands help protect homes, businesses and ecosystems from flooding while climate change intensifies destructive floods across the country.”
Geoff Gisler, program director for the Southern Environmental Law Center, said in an emailed statement that developers “are using weakened wetlands protection laws to build houses in places that will ultimately flood.”
EPA and the Army Corps will hold two in-person public meetings on the proposed rule with an option for virtual participation. Public comments on the proposed rule are due by Jan. 5, 2026.
