This past week, 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.
According to 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.” EPA claims that 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. Considering the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021.
EPA claims that the proposed rule 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. EPA further states 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 agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register. The Association is currently reviewing the proposed rule in preparation of making comments.