On Monday, November 17th, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) announced a new proposed rule to redefine the definition of "Waters of the United States," or WOTUS, under the Clean Water Act (CWA). The goal of the new proposal is to align the definition of WOTUS with the United States Supreme Court 2023 decision Sackett v. EPA which held that WOTUS should include waters which are "relatively permanent" and those wetlands which share a "continuous surface connection" to such waters.
To that end, the proposed rule includes definitions for both "relatively permanent" and "continuous surface connection." Along with those new definitions, the proposed rule includes a definition of "tributary" which would extend WOTUS status only to those tributaries of navigable waters which are "relatively permanent" and have a "bed and band." Additionally, the proposal would 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. The proposed rule is subject to a 45-day public comment period before a final rule is issued.