The U.S. Environmental Protection Agency (USEPA) and U.S. Department of the Army (Army) announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS) with updates to reflect consideration of Supreme Court decisions. USEPA says the action advances the 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. The proposed rule is intended to support a stable implementation of “waters of the United States” while USEPA and the Army continue to consult with States, Tribes, local governments, and a broad array of stakeholders.
“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,” says Michael S. Regan, USEPA Administrator. “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.”
Recent court decisions 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. Due to the court actions, the USEPA and Army have been implementing the pre-2015 regulatory regime nationwide since early September 2021.
The proposed WOTUS Rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions relied upon by the agricultural community in the Clean Water Act.
The USEPA and Army say they have conducted extensive pre-proposal engagement to help inform the content of the proposed rule. Public comments on the proposed WOTUS Rule will be accepted until February 7, 2022. The proposed WOTUS Rule is published on the Regulations.gov website under Docket No. EPA-HQ-OW-2021-0602. For more information on submitting a written comment or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus.