EPA, Corps Announce Proposed WOTUS Rule

The Environmental Protection Agency and the Corps of Engineers announced on November 18 a proposed rule to re-establish the pre-2015 definition of “waters of the United States,” (WOTUS) which had been in place for decades. It replaces the Trump administration’s Navigable Waters Protection Rule and continues the contentious process of redefining water rules yet again. 

The Biden administration had announced this intention in June. The same array of farm and trade groups that strongly opposed the 2015 rule from the Obama administration and called the Trump water rule a major improvement have pledged to renew the fight in court. The Farm Bureau has called the 2015 WOTUS rule “illegal.” But recent court decisions in U.S. District Courts for Arizona and New Mexico have vacated the Navigable Waters Protection Rule.

The differences between the two water rules turn on the differences between the Trump rule’s specifying of a “direct hydrological” connection between water features, versus an “ecological” connection or “significant nexus,” a vague term introduced by the Supreme Court in its Rapanos v. United States ruling in 2006. Under the Obama administration, the EPA and Corps asserted their intent to regulate any water feature, even temporary ones, with a “significant nexus” to navigable waterways. Ranchers, farmers and landowners claimed that was an open-ended license for overreaching federal control of land. 

In a press release, EPA said, “This action advances the agencies’ goal of establishing a durable definition of WOTUS that protects public health, the environment and downstream communities while supporting economic opportunity, agriculture and other industries that depend on clean water. This proposed rule would support a stable implementation of ‘waters of the United States’ while the agencies continue to consult with states, tribes, local governments and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.

“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” EPA Administrator Michael S. Regan said. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”

“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices and is shaped by the lived experience of local communities and stakeholders.”

The agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021. The EPA said the November 18 action is “an important step because it would solidify the rules of the road for a stable implementation of ‘waters of the United States’ [rule] while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.”

In September, the American Farm Bureau Federation said in a comment submitted to EPA, “The regulation of low spots on farmlands and pastures as jurisdictional ‘waters’ means that any activity on those lands that moves dirt or applies any product to that land could be subject to regulation. Everyday activities such as plowing, planting or fence building in or near ephemeral drainages, ditches, or low spots could trigger the Clean Water Act’s harsh civil or even criminal penalties unless a permit is obtained. The tens of thousands of additional costs for federal permitting of ordinary farming activities, however, is beyond the means of many family or small business farmers or ranching owners.”

EPA and the Army are taking further comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.

For more information on submitting written comment on the proposal or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus.