EPA to create new WOTUS rule

The U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) announced their intent to revise the definition of “waters of the United States” (WOTUS). In the announcement, the EPA notes that this revision is being done “to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth.”

“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,” 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.”

“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 say they have determined that the rule is significantly reducing clean water protections. According to the announcement, “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, the Department of Justice is filing a motion requesting remand of the rule. The EPA and Department of the Army plan to initiate a new rulemaking process to restore the protections that were in place prior to the 2015 WOTUS implementation. 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.

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: https://www.epa.gov/wotus.