EPA and the US Army Corps Will Once Again Revise the WOTUS Definition

On June 9, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army Corps of Engineers (USACE) concluded their review of the Navigable Waters Protection Rule that defines the term “waters of the United States” (also known as WOTUS).  The joint press release announced the Agencies’ intention to initiate a new rulemaking process that will repeal the WOTUS rule issued by the Trump Administration in 2020 and restore the broader and more stringent permitting requirements for development and other impacts to WOTUS that were in place even prior to the Obama Era 2015 Clean Water Rule.  According to the Agencies’ announcement, this rulemaking will further develop a new rule to establish a “more durable” (and hopefully clearer) definition of “waters of the United States.”

EPA’s press release states that the Agencies’ new regulatory effort will be guided by the following considerations:

  • Protecting water resources and our communities consistent with the federal Clean Water Act.
  • The latest science and the effects of climate change on our waters.
  • Emphasizing a rule with a practical implementation approach for state and Tribal partners.
  • Reflecting the experience of and input received from landowners, the agricultural community that fuels and feeds the world, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.

Given the tenor of the EPA/USACE press release, it is likely that any new regulation would expand the scope of waters subject to Clean Water Act protections and permitting obligations. Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. Whether the new Biden rule will go beyond even the protections in the 2008 Bush Administration WOTUS Guidance is unclear.

To learn more about the definition of waters of the United States, visit: https://www.epa.gov/wotus.

Background

The Clean Water Act prohibits 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. As a result, the definition has been highly political – changing frequently with each new presidential administration.   Most recently, former President Trump repealed the WOTUS definition implemented by the Obama Administration in 2015 and issued a narrower definition of WOTUS in its place (the 2020 Trump Rule).  According to the Biden Administration EPA, the EPA and Department of the Army have determined that the 2020 Trump rule “is leading to significant environmental degradation,” said EPA Administrator Michael S. Regan. “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”

The 2020 Navigable Waters Protection Rule was identified in President Biden’s Executive Order 13990, which directs federal agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021. See Fact Sheet: List of Agency Actions for Review, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.