On November 18, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army proposed a rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS), which had been in place for decades. It has been updated to reflect Supreme Court decisions. The proposed rule would support a stable implementation of WOTUS while the agencies continue to consult with states, tribes, local governments, and stakeholders in both the implementation of WOTUS and future regulatory actions, the EPA said.
“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,” EPA Administrator Michael S. Regan said. “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.”
Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham said his department is committed to working with the EPA to develop a rule based on experience and expertise.
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.
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, the EPA said.
The agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.
Congress enacted the Clean Water Act in 1972. One of the act’s principal tools 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 as “the waters of the United States, including the territorial seas.” WOTUS is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act.
On June 9, the EPA and the Department of the Army announced their intent to revise the definition of WOTUS. Upon review of the 2020 Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.