The Environmental Protection Agency announced that it would work with the U.S. Army Corps of Engineers to review the definition of the “waters of the United States.” The intent, the EPA said, was to cut overall permitting and construction costs “while protecting the nation’s navigable waters from pollution.”
“We want clean water for all Americans supported by clear and consistent rules for all states, farmers, and small businesses,” said EPA Administrator Lee Zeldin in previously prepared remarks. “The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business.”
The rule is one of the regulations the National Multifamily Housing Council and the National Apartment Association targeted in a campaign to reshape federal regulations that affected the multifamily sector.
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The WOTUS rule was an attempt to address an ambiguity in the Clean Water Act of 1972. Congress gave the EPA authority to regulate “navigable waters,” as Audubon Magazine noted. However, the law didn’t explicitly include streams and wetlands that typically flow into larger bodies of water and can carry pollution downstream. As a result, the EPA lacked clear authority over those resources.
The Obama administration in 2015 finalized the Clean Water Rule, nicknamed WOTUS. A page previously posted by the EPA explained how WOTUS put drinking water sources for 117 million people under the agency’s jurisdiction. The most recent reworking of the definition happened in 2023.
“When upstream waters significantly affect the integrity of waters for which the Federal interest is indisputable—the traditional navigable waters, the territorial seas, and interstate waters—this rule ensures that Clean Water Act programs apply to protect those paragraph (a)(1) waters by including such upstream waters within the scope of the ‘waters of the United States,' the rule stated.
The EPA now wants to incorporate an approach from a Supreme Court case, Sackett v. Environmental Protection Agency, that said the term waters only included “relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes,” as the EPA wrote. Wetlands could only be covered with such a continuous surface connection.
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