EPA and Army Announce Next Steps for Definition of Waters of the United States

WOTUS

On July 30, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army announced plans for upcoming community engagements to inform their efforts to revise the definition of “waters of the United States” (WOTUS). The agencies intend to revise the definition of WOTUS following a process that includes two rulemakings. A forthcoming foundational rule would restore the regulations defining WOTUS that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. A separate, second rulemaking process would refine this regulatory foundation and establish an updated WOTUS definition.

According to an EPA announcement, “to help ensure that EPA and Army hear from diverse perspectives, future engagement activities will be developed in coordination with the U.S. Department of Agriculture.” The announcement stated that the agencies are initiating Federalism and Tribal consultations for the foundational rule. The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings.

The agencies plan to convene 10 regionally focused and inclusive roundtables during the upcoming fall and winter. The roundtables will provide stakeholders opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.

“We are committed to crafting an enduring definition of WOTUS by listening to all sides so that we can build on an inclusive foundation,” said EPA Administrator Michael S. Regan. “Uncertainty over the definition of WOTUS has harmed our waters and the stakeholders and communities that rely on them. I look forward to engaging all parties as we move forward to provide the certainty that’s needed to protect our precious natural water resources.”

Background

Congress enacted the Clean Water Act (CWA) in 1972 with the statutory objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” One of the law’s principal tools in achieving that objective is a prohibition on the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the Act. Navigable waters are defined in the CWA as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” is a threshold term establishing the geographic scope of federal jurisdiction under the CWA. The term “waters of the United States” is not defined by the law but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.

In May 2015, EPA released the final WOTUS rule with the Army Corps, over the objections expressed by many, including ACA. The 2015 WOTUS rule definition gave the federal government jurisdiction over some of the smallest waterways in the country, including authority over smaller bodies of water that EPA doesn’t already regulate.

In February 2017, President Trump issued Executive Order 13778, which directed EPA and the Army Corps to review and rescind or revise the 2015 WOTUS rule. As a result, EPA and the Army Corps initiated a comprehensive, two-step process intended to repeal (step one) and revise (step two) the definition of WOTUS. The agencies officially completed this process after issuing the Navigable Waters Protection Final Rule.

On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of WOTUS following review of the Navigable Waters Protection Rule, and the agencies’ determination that the rule is significantly reducing clean water protections.

ACA had supported recodification of the regulatory text that existed prior to the 2015 WOTUS rule, and revising the definition to clearly define that “waters of the United States” are waters within the ordinary meaning of the term.

More information on submitting written recommendations and registering for the public meetings is available at www.epa.gov/wotus.

Contact ACA’s Rhett Cash for more information.

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