On April 19, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) held a consultation meeting with NACo and other national state and local government associations regarding the agencies’ upcoming “Waters of the U.S.” (WOTUS) rulemaking under the requirements of Executive Order (EO) 13132—Federalism. EO 13132 requires federal agencies to consult with elected state and local government officials (or their respective national organizations) on yet-to-be-proposed rules that impact state and local governments.
The meeting was a result of President Trump’s February 28 Executive Order (EO) on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The EO directs the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to revisit and rewrite the 2015 WOTUS rule.
The EPA and the Corps briefed state and local governments on their two-step process to withdraw and rewrite the rule. First, as part of the withdrawal effort, the agencies will move to reinstate preexisting regulations and guidance that were in place prior to the 2015 WOTUS rule. Second, the agencies 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). In Rapanos, the Corps was challenged over its intent to regulate isolated wetlands under the Clean Water Act (CWA) Section 404 permit program. In a 4-1-4 split decision, Justice Scalia’s plurality opinion stated that federal jurisdiction should only include waters with a relatively permanent flow.
During the meeting, the EPA and the Corps provided a PowerPoint presentation that included several options under consideration, including how “relatively permanent” waters and wetlands with a “continuous surface connection” should be defined. For example, should “relatively permanent” waters be limited to streams that carry water throughout the year or should the definition be expanded further to include “seasonal” streams? Likewise, should wetlands with a “continuous surface connection” through non-jurisdictional features be regulated? Further, what type of metrics could be used to demonstrate a “continuous surface connection?”
WOTUS is a term used in the Clean Water Act to define which waters (and their tributaries) fall under federal or state jurisdiction. In 2015, the Obama Administration finalized a new definition of WOTUS, which was immediately challenged in the courts. Since the rule was originally proposed, NACo has expressed numerous concerns about the rule’s impact on county-maintained ditches and other water infrastructure.
The EPA and the Corps are accepting substantive comments from state and local governments until June 19.
The comments should cover or include some or all of the following items:
- Explain how the agencies should redefine WOTUS, including the pros and cons of using Scalia’s definition in Rapanos;
- The opportunities and challenges for your county if the Scalia approach is implemented;
- How would a WOTUS rewrite using the Scalia decision impact your state and county’s existing water laws?
- Are their Clean Water Act programs beyond Sections 303, 311, 401, 402 and 404 that should be analyzed for economic impact? Are there other programs specific to your region that would be impacted but would not be captured in an economic analysis?;
- Any additional approaches that the agencies should consider beyond using the Scalia definition? and
- Any additional information that may be helpful to the agencies during their rewrite efforts.