EPA, Army Corps of Engineers Revise the Definition of Waters of the United States

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers will formally revise the definition of “waters of the United States” (WOTUS), the Environmental Protection Agency (EPA) Administrator Michael Regan announced on June 9.

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, 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 (NWPR) 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 January 20, 2017, and January 20, 2021.

The NWPR addresses traditional navigable waters and territorial seas but narrowed the extent of federal jurisdiction by excluding isolated water bodies, “ephemeral” waters that form only in response to rain, and most ditches.

Upon review of the NWPR, 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, according to the agencies.

As a result of these findings, the Department of Justice on June 9 filed a motion requesting remand of the NWPR rule. The action reflects the agencies’ intent to initiate a new rulemaking 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,” EPA noted in a news release.

EPA said 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 waters;
• Emphasizing a rule with a practical implementation approach for state and Tribal partners; and
• 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. 

EPA will hold public outreach sessions around the country this summer and fall. Repealing and replacing the NWPR will be a multi-year, long process and during that time, the prior rules issued in 1986 and amended through guidance, thereafter, will be in effect. It is unclear what will happen to the thousands of jurisdictional determinations that have already been made under the NWPR.

The American Public Power Association (APPA) generally supported the NWRP rule. A clear WOTUS definition is critically important as the electric utility industry transitions its generation fleet to low and non-emitting resources. The association believes that the NWPR provided clear descriptions of exclusions for many water features that traditionally have not been regulated.