Jun 10, 2021
‘Destructive impacts’ lead to EPA, Army revisiting WOTUS definition

The U.S. Environmental Protection Agency and Department of the Army announced June 9 their intent to revise the definition of “waters of the United States,” known as WOTUS, to “better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity,and economic growth.”

As described in an EPA declaration requesting remand of the 2020 Navigable Waters Protection Rule, a broad array of stakeholders – including states, Tribes, local governments, scientists and non-governmental organizations – are seeing “destructive impacts to critical water bodies under the 2020 rule.”

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” EPA Administrator Michael S. Regan said in a news release. “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.”

“Communities deserve to have our nation’s waters protected. However, the Navigable Waters Protection Rule has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and Tribal co-regulators, and is shaped by the lived experience of local communities.”

“Upon review of the Navigable Waters Protection Rule, the agencies have determined that the rule is significantly reducing clean water protections. The lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.

“As a result of these findings, today, the Department of Justice is filing a motion requesting remand of the rule. Today’s action reflects the agencies’ intent to initiate a new rule-making process that restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.”

The agencies’ new regulatory effort will be guided by the following considerations:
  • Protecting water resources and our communities consistent with the 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.
“The agencies are committed to meaningful stakeholder engagement to ensure that a revised definition of WOTUS considers essential clean water protections, as well as how the use of water supports key economic sectors. Further details of the agencies’ plans, including opportunity for public participation, will be conveyed in a forthcoming action. “
To learn more about the definition of waters of the United States, visit here.
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 and jointly implemented in the agencies’ respective programmatic activities.
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 Jan. 20, 2017, and Jan. 20, 2021. See Fact Sheet: List of Agency Actions for Review, available here.



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