Source: EPA, 11/18/21

 Today, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (the agencies) 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, updated to reflect consideration of Supreme Court decisions. This action advances the agencies’ goal of establishing a durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries that depend on clean water. This proposed rule would support a stable 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 regulatory 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. Today’s action is an important step because it would solidify the rules of the road for a stable implementation of “waters of the United States” while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.

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.

For more information on submitting written comment on the proposal or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus.

Background
Congress enacted the Clean Water Act in 1972 with the statutory objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” One of the Act’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 Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” (WOTUS) is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.

On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of WOTUS to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. Upon review of the 2020 Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.