Prior to the Thanksgiving holiday, EPA and the Army Corps of Engineers (USACE) made an announcement on November 18 that a new Waters of the United States (WOTUS) definition is on its way.

While NACWA expected some movement on WOTUS under the Biden Administration, it was not immediately clear how EPA or the Army would achieve a new or revised definition – namely, would we see a “repeal and replace” approach similar to what the previous EPA Administration did, or would EPA simply propose a new rulemaking considering the recent U.S. District Court decision out of Arizona that vacated the Trump-era Navigable Waters Protection Rule?

In EPA and USACE’s recent November 2021 announcement, the Agencies indicate they will not engage in a repeal and replace effort of the Navigable Waters Protection Rule given the court ruling and instead will directly move towards a revised WOTUS definition that focuses on a pre-2015 definition of WOTUS. EPA and USACE have issued a pre-publication copy of the proposed WOTUS definition with a 60-day period for public comment once published in the Federal Register.

Interestingly, EPA and USACE have signaled that this pre-publication version will likely not be the last WOTUS definition they propose. The Agencies “will consider all public comments on the proposed rule including changes that improve clarity, implementability, and long-term durability…. [and] will also consider changes through a second rulemaking that they anticipate proposing in the future, which would build upon the foundation of this proposed rule” (emphasis added).

Not surprisingly, as noted in the pre-publication proposal, EPA and USACE are returning to familiar territory and reverting to the pre-2015 WOTUS definition that has been in place for decades and largely reflect the 1986 regulations. This WOTUS definition includes the recognizable “foundational waters”— traditional navigable waters, interstate waters, and the territorial seas. It also includes each of these waters’ adjacent wetlands and tributaries.

This WOTUS definition will look to use the relatively permanent standard (i.e., waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters) or the significant nexus standard (i.e., waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of the “foundational waters”), both of which come from the U.S. Supreme Court’s 2006 decision in Rapanos v. United States.

Surprisingly, in the pre-publication notice, EPA and the Corps only expressly maintain WOTUS jurisdiction exclusions for waste treatment systems and prior converted cropland – both of which have been in place since the 1986 regulations. The Agencies are not proposing to codify the list of exclusions that were found in the Navigable Waters Protection Rule or the 2015 Clean Water Rule (e.g., stormwater control features, water recycling structures, or groundwater), asserting that doing so is “most consistent with the goal of this proposed rule to return to the familiar and longstanding framework that will ensure Clean Water Act protections, informed by relevant Supreme Court decisions.”

EPA and USACE give minimal explanation of this omission in the proposed rulemaking’s preamble and are accepting public comments specifically on why the Agencies should or should not expand the list of exclusions to those that were included in the 2015 Clean Water Rule and the Navigable Waters Protection Rule. NACWA is seeking feedback on specific situations where the exclusions have benefited members and will be weighing in with the Agencies on the critical need to maintain these exclusions.

For members that want to learn more about the proposed WOTUS definition, EPA and USACE will be hosting a number of virtual hearings next year. EPA and the Corps ask that you register in order to participate. Virtual hearings are scheduled for:

• Wednesday, January 12, 2022 from 10 AM to 1PM EST
• Thursday, January 13, 2022 from 2PM to 5PM EST
• Tuesday, January 18, 2022 from 5PM to 8PM EST

NACWA will let members know of any developments, including when the proposed rulemaking is published in the Federal Register. If members have any questions or comments to include in NACWA’s advocacy on WOTUS, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.