Policy Brief

"Waters of the U.S." Rule

ACTION NEEDED:

Continue to advocate for the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (Corps) to rewrite the 2015 “Waters of the U.S. (WOTUS)” rule in a way that recognizes counties’ role as owners of key public safety and water infrastructure and as intergovernmental partners in implementing federal regulations under the Clean Water Act.

BACKGROUND:

On June 27, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) signed a notice initiating the first of a two-step process to review and rewrite the “Waters of the U.S. (WOTUS)” rule finalized in 2015.

The proposed rule on Definition of “Waters of the United States” – Recodification of Pre-existing Rules would withdraw the 2015 rule and reinstitute regulations that were in place prior to the 2015 WOTUS rule. Once the recodification notice is published in the Federal Register, the EPA and Corps will accept public comments on the proposal for 30 days. The agencies’ action is in accordance with President Trump’s February 28 Executive Order (EO) 13778: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the U.S.” Rule.

As step two of the process, the agencies plan to release a revised WOTUS proposed rule sometime this fall. The revised definition is expected to be narrower in scope and limited to those waters that flow most of the year.

WOTUS is a term used in the Clean Water Act (CWA) to determine what waters and their conveyances fall under federal verses state permitting authority. In 2014, the EPA and the Corps undertook an effort to rewrite and expand the current WOTUS definition. In 2015, the Obama Administration finalized a new definition of WOTUS, which was immediately challenged in the courts. Since the rule was originally proposed in 2014, NACo has expressed concerns with the impact a broader interpretation of WOTUS may have on county-owned and maintained roads and roadside ditches, bridges, flood control channels, drainage conveyances and wastewater and storm water systems. NACo had called for the 2015 final WOTUS rule to be withdrawn until further analysis and more in-depth consultation with state and local officials can be completed.

In April, the EPA and the Corps met with their state and local government partners under Executive Order (EO) 13132: Federalism to brief them on the two step WOTUS withdrawal and rewrite efforts. EO 13132 requires federal agencies to consult with state and local government officials and/or their national associations on yet-to-be proposed rules and regulations that will directly impact state and local governments.

The agencies discussed their plan to develop a new WOTUS definition based on Supreme Court Justice Antonin Scalia’s opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia’s plurality opinion stated that federal jurisdiction should only include waters with a relatively permanent flow.

However, the agencies were also working on how “relatively permanent” waters and wetlands with a “continuous surface connection” should be defined. For example, should “relatively permanent” waters include “seasonal streams” that flow approximately three months a year or only those streams that carry water year-round? Likewise, should wetlands with a “continuous surface connection” through non-jurisdictional features be regulated?

To help them clarify their path forward, the agencies requested comments and recommendations from state and local governments through June 19. NACo, along with the National League of Cities (NLC) and the U.S. Conference of Mayors (USCM), submitted a joint letter. The agencies are currently reviewing the comments they received under EO 13132. Once the agencies release the proposed WOTUS rule this fall, counties will have another opportunity to provide public comments.

Related to the administration’s efforts, on June 27, appropriators on the U.S. House of Representatives Energy and Water Appropriations Subcommittee released a draft spending bill for FY 2018 containing a policy rider that would limit public involvement in the EPA and the Corps’ efforts to withdrawal the 2015 WOTUS rule. The policy rider would allow the EPA and Corps to “withdraw from the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” This bill advanced out of the subcommittee on June 28.

The language is in reference to the Administrative Procedures Act (APA), which lays out procedures and processes for public engagement during federal agency rulemaking efforts. Under the rider, the EPA

and the Corps would not be required to meet APA rulemaking requirements in order to withdraw the rule. NACo is analyzing how this provision would impact our counties’ ability to comment on WOTUS rulemaking efforts.

Key Talking Points:

  • As co-regulators under provisions of the Clean Water Act, counties are not just another stakeholder in this discussion. Counties own and maintain roadside ditches and other water infrastructure, and act as both regulators and regulated entities under the Clean Water Act.
  • We thank the EPA and the Corps for holding a EO 13132 Federalism consultation meeting on April 19 with state and local governments on the WOTUS rule-making. We encourage the agencies to continue the dialogue with state and local governments throughout the WOTUS rulemaking process, as authorized under EO 13132.

For further information, contact: Julie Ufner at 202.942.4269 or jufner@naco.org

 

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