Yesterday, the U.S. Environmental Protection Agency (EPA) and Department of the Army announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS), which had been in place for decades, with slight updates to reflect some Supreme Court decisions.
The agencies hope that this action could help establish a durable definition of WOTUS, which the agencies have been working towards since June 2021. The proposed rule would support a stable temporary implementation of “waters of the United States” while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future actions.
“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” said EPA Administrator Michael S. Regan. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”
“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders.”
Recent court decisions have reinforced the need for a stable and certain definition of WOTUS. The U.S. District Courts for both Arizona and New Mexico have vacated the Navigable Waters Protection Rule. In light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021.
The proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely.
EPA and Army conducted extensive pre-proposal engagement, including Federalism and Tribal consultation, to help inform the content of the proposed rule. The agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.
