US | EPA and Army Corps of Engineers Announce WOTUS Rulemakings

In the August 4, 2021 publication of the Federal Register, the Environmental Protection Agency (EPA) and Department of the Army, Corps of Engineers (Corps) announced public meeting dates, solicited preproposal recommendations, and established a public docket regarding the definition of “waters of the United States”(WOTUS), which establishes the geographic scope of federal jurisdiction under the Clean Water Act (Act). The agencies will be holding five meetings via web conference in August 2021, with an additional date reserved in September if needed.

The EPA and Corps are concerned that the current definition of WOTUS under the 2020 Navigable Waters Protection Rule (NWPR) does not further the principal objective of the Act, which is to “restore the chemical, physical, and biological integrity of the Nation’s waters.”

Accordingly, the agencies are proposing two rulemakings:

  1. A foundational rule to restore regulations defining WOTUS that were in place before the 2015 Clean Water Rule and the NWPR, and
  2. A rule that refines and builds upon that regulatory foundation.

The agencies will continue to implement the NWPR until it is no longer in effect, either as a result of a new final rule or by virtue of a court order.

Feedback Requested

The agencies welcome stakeholder engagement and are particularly interested in receiving the following:

  • Implementation | Input on success and challenges in the implementation of the significant nexus analyses from the pre-2015 regulatory regime and the 2015 Clean Water Rule, as well as the typical year analysis under the NWPR.
  • Regional, State, and Tribal Interests | Feedback on how states and tribes may have taken action in response to changes in the jurisdictional scope of WOTUS.
  • Science | Identification of relevant science on the integrity of the nation’s waters.
  • Environmental Justice | Feedback on how the jurisdictional status of waters impacts overburdened, low-income, and other disadvantaged communities.
  • Climate Implications | Feedback on how climate change affects the chemical, physical, and biological integrity of the nation’s waters.
  • Scope of Jurisdictional Tributaries | Feedback regarding characteristics that could allow for clarity, implementability, and/or regionalization in defining adjacency and identifying jurisdictional waters.

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Sources

Notice of Public Meetings Regarding “Waters of the United States,” 86 Fed. Reg. 41911 (Aug. 4, 2021). 

Public Outreach and Stakeholder Engagement Activities, Environmental Protection Agency.

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Other Resources

EPA and Army Corps of Engineers Announces Intent to Rescind and Rewrite Navigable Waters Protection Rule

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