Industry Coalition Supports EPA Proposal to Clarify WOTUS Definition

The Waters Advocacy Coalition (WAC), of which ICSC is a member, has submitted formal comments supporting the Environmental Protection Agency’s proposed rule to update the definition of “Waters of the United States” (WOTUS) under the Clean Water Act.

In its comments, WAC emphasized that the proposal represents an important step toward restoring regulatory clarity, aligning federal jurisdiction with congressional intent and incorporating key principles articulated by the U.S. Supreme Court. For owners, developers and investors in retail and mixed-use real estate, greater certainty around federal water jurisdiction is critical to responsible redevelopment, infrastructure investment and long-term project planning.

WAC praised the proposed rule for clearly defining core jurisdictional concepts such as “traditional navigable waters,” “relatively permanent” waters, and “continuous surface connection” for adjacent wetlands. According to WAC, these clarifications help end years of regulatory whiplash caused by shifting definitions, which have increased permitting delays, compliance costs, and litigation risk for landowners. By reinforcing the balance between federal oversight and state authority, the rule would allow environmental protections to focus on genuinely significant waters while giving states appropriate flexibility to manage local water resources.

At the same time, WAC urged EPA and the Army Corps of Engineers to adopt targeted refinements to ensure consistent implementation. These recommendations include narrowly defining traditional navigable waters based on their role in commerce, combining certain jurisdictional categories for clarity, accounting for regional and seasonal hydrology, and clearly assigning the burden of proof to agencies in jurisdictional determinations. WAC also supports explicit exclusions for features such as ditches, groundwater, stormwater control systems, waste treatment systems, and prior converted cropland, arguing that these exclusions are consistent with the Clean Water Act and long-standing regulatory practice.

Looking ahead, WAC stressed that implementation will be just as important as the final regulatory text. Clear guidance, reliable tools for jurisdictional determinations, and consistent application across regions will be essential to avoid renewed uncertainty for landowners and project sponsors. For ICSC members, the outcome of the WOTUS rulemaking will have direct implications for permitting timelines, redevelopment feasibility, and investment certainty—particularly for adaptive reuse, brownfield redevelopment, and infill projects. ICSC will continue to monitor the rulemaking process and engage with policymakers to ensure that final regulations provide the clarity and predictability needed to support economic development while safeguarding the nation’s water resources.

For more information contact Abby Jagoda at ajagoda@icsc.com.