On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army (“the agencies”) made an announcement referring to the signing of a proposed rule to revise the definition of “waters of the United States.” On December 7, 2021, the proposed rule was published in the Federal Register, The Daily Journal of the United States Government. The period for public comments is now open and will close on February 7, 2022.
As announced on June 9, 2021, “the agencies” expressed their intention to revise the definition of WOTUS. This proposal is described as a critical milestone in the regulatory process by many. The process that includes two rulemakings is expected to protect the nation’s vital water resources and thus support public health, environmental protection, agricultural activity, and economic growth. An EPA declaration described that the 2020 Navigable Waters Protection Rule has destructive impacts on critical water bodies, which was why requesting remand of the 2020 rule. This was supported by a large variety of stakeholders, including states, tribes, local governments, scientists, and non-governmental organizations.
The agencies explained that the revised definition of WOTUS will be based on the pre-2015 definition. They intended to reflect consideration of Supreme Court decisions. This standard approach would deliberate a stable implementation of “waters of the United States.” At the same time, the agencies will continue to consult with all parties involved in implementing WOTUS and future regulatory actions. The broad array of stakeholders provided extensive feedback and recommendations, which EPA and the Army reviewed. After evaluating all opinions obtained through consultations, pre-proposal meetings, and webinars, the EPA and the Army developed the proposed rule.
On July 30, 2021, the agencies announced stakeholder engagement opportunities, together with the intent of the agencies to host ten regionally focused roundtables. On this date, the agencies also announced a schedule for initial public meetings. The purpose of these meetings is for stakeholders to present their perspectives on defining “waters of the United States” and implementing that definition. The public meetings were held as web conferences in the period between August and September 2021. On October 13, 2021, EPA and Army encouraged stakeholders to submit nomination letters for a slate of nominees to enter the selection process for one of these geographically focused roundtables.
PRE-PUBLICATION NOTICE: On November 18, 2021, the EPA Administrator, Michael S. Regan, and the Acting Assistant Secretary of the Army (Civil Works), Jaime A. Pinkham, signed the following proposed rule. After signing, EPA has submitted the document for publication in the Federal Register (FR), and it is available solely for the convenience of interested parties. It is important to highlight that this is not the official version of the rule and does not represent an Agency determination or policy for purposes of public notice and comment under the Administrative Procedure Act.
Background: The Clean Water Act interdicts the discharge of pollutants to navigable waters, defined in the Act as “the waters of the United States (WOTUS), including the territorial seas.” WOTUS is the term used to establish the point source concerning the geographic scope of federal jurisdiction under the Clean Water Act. Since the 1970s, EPA and the Army have defined the term WOTUS, a definition used in the agencies’ programmatic activities.
President Biden’s Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (January 20, 2021) has identified the 2020 Navigable Waters Protection Rule. This administers the federal agencies to carefully review all existing regulations, orders, guidance documents, policies, and actions that were promulgated, issued, or adopted between January 20, 2017, and January 20, 2021.