EPA Announces New Draft WOTUS Regulation

U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin has announced a new proposed regulation that would revise the definition of “waters of the United States,” or WOTUS, a regulation that defines which water bodies and wetlands are federally protected under the Clean Water Act (CWA). As drafted, the rule would be much less restrictive than versions that were opposed by the Metals Service Center Institute (MSCI) and the broader manufacturing industry in the past.

Understanding which bodies of water require federal oversight under the CWA is critical for manufacturers and metals companies that are developing new infrastructure projects. More specifically, clarifying which waters are covered could reduce delays for mining projects, including those involving rare earths and other critical minerals that manufacturers need.

The draft rule aims to bring WOTUS in line with a 2023 U.S. Supreme Court 2023 ruling that had reduced the scope of federal jurisdiction over waters and wetlands. Key proposed revisions include:

• Defining key terms like “relatively permanent,” “continuous surface connection,” and “tributary” to appropriately delineate the scope of WOTUS consistent with the CWA 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 guidelines and 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.

The newly proposed rule is intended to be a “durable” definition that would end the more than-decade long cycle of successive administrations redefining the WOTUS standard, Administrator Zeldin said.

The draft rule was published in the Federal Register on Nov. 20. The public has 45 days from that date to submit comments on how the changes might affect compliance requirements, project planning, and permitting timelines, and more. Learn more about the rule and how to comment at this link.

As a reminder, in December 2024, MSCI, the National Association of Manufacturers, and more than 100 manufacturing associations, sent a letter to President Donald Trump outlining a roadmap for regulatory actions that would boost the manufacturing economy, including revising the WOTUS rule. Read that letter.