Environmental Permitting, Regulatory Developments

Next Steps for WOTUS

On August 5, 2021, the EPA and the U.S. Department of the Army announced upcoming community engagement opportunities for public input into their efforts to revise the “waters of the United States” (WOTUS) definition.

WOTUS definition

Redefining WOTUS is a two-part process for the agencies. The first rulemaking will restore the WOTUS definition to the version in place before its 2015 change by the Obama administration. It will include updates consistent with relevant Supreme Court decisions. A second, subsequent rulemaking will further define the updated rule and establish “an updated and durable definition of” WOTUS, according to the EPA press release.

The public and stakeholders will have the opportunity to provide written recommendations, and a series of public meetings will be held in August to hear perspectives on both rulemakings. “The agencies also intend to host a series of dialogues with state and Tribal co-regulators this fall to discuss both rulemakings,” the EPA says.

“Additionally, the previous rulemaking efforts have highlighted the regional variability of water resources and the importance of close engagement with stakeholders to understand the specifics of how they experience regulation under varying definitions of [WOTUS],” the EPA adds. “To honor our commitment to listening and learning from diverse perspectives, the agencies plan to convene ten regionally focused and inclusive roundtables during the upcoming fall and winter. These roundtables will allow a full range of stakeholders to engage and discuss their experience with definitions of WOTUS—including what has worked and what has not within their geographic areas. The roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.”

Background

The Clean Water Act (CWA) was enacted by Congress in 1972 to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The only problem was the “Nation’s waters” was not defined, and that definition has been one of the most fiercely contested and misunderstood definitions under the EPA’s jurisdiction. And, to make it even more confusing, that jurisdiction is shared with the Army Corps of Engineers.

The Obama administration attempted to define WOTUS by expanding its definition to clarify which bodies of water are automatically covered by the CWA and which must still be dealt with on a case-by-case basis. That rule defined automatically protected waterways as any that have a bed, a bank, and a high-water mark, according to VOX. This included many streams that remain dry part of the year.

The Trump administration’s definition made a clear distinction between federally protected wetlands and state-protected wetlands. Its definition of WOTUS pulled “back federal oversight of at least 51 percent of wetlands and 18 percent of streams — many of which had been protected since the Reagan administration,” according to E&E News.

For many, the Obama administration’s definition was overreaching, and the Trump administration’s definition did too little.

Both Obama’s and Trump’s WOTUS definitions were extremely controversial and the subject of multiple court battles.

Pending ‘durable’ definition

Hoping to avoid further litigation minefields, it is clear that the Biden administration is attempting to receive multiple perspectives and input to create a durable bipartisan WOTUS definition.

“Today’s announcement marks an important step in the agencies’ efforts to restore protections and write a rule to define WOTUS that is grounded in science and the law, emphasizes effective implementation, and prioritizes collaborative partnerships with states, Tribes, local governments, and stakeholders,” according to the EPA press release. “To help ensure that EPA and Army hear from diverse perspectives, future engagement activities will be developed in coordination with the U.S. Department of Agriculture.”

“It is vital that farmers and rural Americans have a seat at the table and a voice in this process so that the rule responds to concerns and realities on the ground. The engagement in the coming months is important and I encourage all stakeholders to provide their experiences and views in order to help shape future policy,” says U.S. Secretary of Agriculture Tom Vilsack.