On January 20, 2021, President Biden signed Executive Order 13990; Protecting Public Health and the environment and Restoring Science to Tackle the Climate Crisis. EO 13390 directed the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to review rules, including the Navigable Waters Protection Rule. Pursuant to the agency review, the EPA and Corps decided to initiate a new rulemaking to revise the definition of “waters of the U.S.” (WOTUS).
On June 9, 2021, the agencies announced their intent to initiate a new rulemaking process that restores the regulations in place before the 2015 Clean Water rule defining the Waters of the United States (WOTUS) amended to be consistent with relevant Supreme Court decisions.
On August 5, 2021, the agencies met with NACo and several other state and local government associations to discuss the efforts to repeal and replace the Navigable Waters Protection Rule. The formal invitation with additional background on the meeting can be found here. During this meeting, the agencies outlined what it means to revert to the pre-2015 regulations in place before the 2015 Clean Water Rule.
The pre-2015 definition includes traditional navigable waters, interstate waters, all other waters, impoundments, tributaries of jurisdictional waters, territorial seas and adjacent wetlands. In 1985, the Supreme Court unanimously upheld the Corps’ inclusion of “adjacent wetlands” in the regulatory definition of WOTUS in the Riverside Bayview Homes case. In 2001, the Supreme Court held that the Clean Water Act does not confer jurisdiction over isolated waters on the basis that they provide habitat for migratory birds in the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC). And the last Supreme Court decision that impacted WOTUS is Rapanos v U.S. in 2006. The Justices were divided on the question of CWA jurisdiction over wetlands adjacent to nonnavigable tributaries of traditional navigable waters. The Scalia plurality opinion defined these waters as “relatively permanent, standing or continuously flowing bodies of water” and wetlands must have a “continuous surface connection” to a jurisdictional water. Justice Kennedy wrote the concurring opinion and noted that a “water or wetland must possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” The dissent on the case deferred to the Corps’ exercise of jurisdiction and concluded that WOTUS encompasses all tributaries and wetlands that satisfy either Scalia’s opinion or Kennedy’s opinion.
The agencies are holding public meetings on August 18, 23, 25, 26 and 31st. To register and learn more about the public outreach and stakeholder engagement activities, please click here.
The timeline for the consultation period is expected to extend through October 4, 2021, when public comments are due to the agencies via email to CWAwotus@epa.gov and email@example.com.
Please review the agency-prepared materials for the consultation to learn more.