On behalf of its member states, NEIWPCC recently submitted comments to the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers’ (USACE) regarding their proposed rulemaking to revise the definition of “Waters of the United States” (WOTUS) under the federal Clean Water Act (CWA).
The WOTUS rule identifies which waters fall under this federal protection, including rivers, streams, wetlands, and other waterbodies that influence interstate commerce or downstream navigable waters. It provides a framework for consistent regulation, permitting, and protection of water quality across state boundaries. Clear federal guidance ensures that these protections are applied consistently and effectively, reducing uncertainty for tribes, states, local governments, and other regulated entities.
The agencies propose to alternatively define “relatively permanent waters” as perennial bodies of water, having “standing or continuously flowing water every day of the year during ordinary conditions.” A waterbody would retain its status if it dries for no more than one instance of up to 30 consecutive days per year due to non-anomalous events such as low tide or regularly occurring dry spells. A waterbody would also retain its status during anomalous events such as drought or dry spell lasting no more than five consecutive years.
NEIWPCC points out the lack of scientifically grounded information to support the 30-day or five-year periods. The letter encourages the EPA and USACE to consider the proposed timeframes in relation to weather and climate specific to the Northeast ecoregions, as this would exclude important waterbodies from federal protection. There also is a need for clarification on how the agencies would implement these standards, especially during the summer’s fluctuating drought conditions. Many perennial waterways and wetlands, including large rivers, have no real-time flow gauges to reliably determine consecutive days of “dry.”
The letter further states that most intermittent streams currently considered “relatively permanent,” as well as wetlands currently considered to have a “continuous surface connection,” would not satisfy the proposed definition. This would lead to the loss of federal protection for many critical waterbodies, including mountain headwaters found in many NEIWPCC member states. These streams routinely experience variable hydrology in the later summer and fall season. While state protections exist, losing the federal backstop creates potential regulatory weakness and significant impacts to programs under the CWA.
The agencies’ proposal to alternatively define “continuous surface connection” as perennial surface water in a wetland that is continuously connected with surface water in a jurisdictional water would make it difficult to determine where one ends and the other begins. Additionally, the EPA and USACE propose to remove the term “adjacent” and instead maintain only the portion of a wetland indistinguishable from a jurisdictional water, due to the presence of surface water.
NEIWPCC encourages the agencies to further consider the impacts of applying a perennial “continuous surface connection” line on wetlands. Due to the glaciated nature of wetland systems across the Northeast, many such as vernal pools and wet meadows would no longer be federally protected. This may lead to regulatory tension between federal and non-federal wetland protections, straining already limited public resources. Developers could be faced with having to pay for two delineations; one for a state or local agency, and a second for federal agency, a process that would be neither streamlined nor efficient.
In addition, due to the functional connection of wetland systems regardless of visible surface water, partial jurisdiction of a wetland system may lead to degradation of jurisdictional water because of adjacent, non-regulated activities in a non-jurisdictional area. Fragmenting management in this manner compromises the core objective of the CWA to protect and restore the integrity of the nation’s water.
The letter seeks clarity on how the agencies intend to address the presence of flood control structures and gates such as levees, tide gates, flap gates, flood gates, and other water-control structures. A wetland could potentially maintain hydrologic connectivity yet remain physically distinguishable from jurisdictional water. Continuous connection may therefore be necessary but not sufficient.
To ensure that no resource or regulatory gaps are created, NEIWPCC recommends that the agencies engage in formal, ongoing consultation with state agencies and technical experts throughout the final rulemaking process.