July 12, 2021
The U.S. Environmental Protection Agency & Army Corps of Engineers plan to revise the definition of "waters of the United States"
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have announced their intention to revise the definition of "waters of the United States" (WOTUS) to "better protect our nation's vital water resources." The WOTUS definition determines the jurisdictional scope of the Clean Water Act (CWA), which regulates pollutant discharges to "the waters of the United States, including the territorial seas." The vague language of the CWA has resulted in regulatory confusion and decades of legal battles, including a series of Supreme Court decisions, e.g., Rapanos v. United States, regarding issues of federal jurisdiction over wetlands and tributaries. The new revision to the WOTUS definition will be the third in as many presidential administrations, following the Obama administration's expansion in 2015 and the Trump administration's rollback in 2020.
In June 2015, under the Obama administration, EPA and USACE published a revised WOTUS definition in the Federal Register (80 FR 37054). While the agencies maintained that the final rule only protected those types of waters that were previously covered under the CWA, opponents of the rule (including industries associated with agriculture) contended that the agencies had broadened the standards for determining federal jurisdictional waters under the CWA. For example, tributaries, previously undefined, were now broadly defined to include rivers, streams, canals, and some ditches that may be perennial, intermittent, or ephemeral. The new definitions were controversial, with many groups raising concerns over increased federal regulation of waters on private property, which led to a number of court cases and a nationwide stay of the 2015 rule two months after it was published.
The Trump administration rescinded the 2015 rule, and in April 2020 EPA and USACE published the Navigable Waters Protection Rule, redefining WOTUS. The Trump administration's definition went into effect in June 2020 and did not include smaller waterbodies. According to EPA and USACE, this revision reduced by approximately 25% the number of waterbodies determined to be protected under the CWA, and the agencies identified 333 projects that would have otherwise required permits. Arid western states were particularly impacted by this rule change, where the exclusions (e.g., ephemeral streams) resulted in the determination that almost all of the more than 1,500 streams assessed under this rule were non-jurisdictional. Leading up and in response to the 2020 redefinition, several states looked towards ways to broaden "waters of the State" rules and policies, creating even more uncertainty and confusion in jurisdictional determinations.
Following recent direction from President Biden to review the 2020 Navigable Waters Protection Rule, EPA and USACE have once again announced their intention to revise the WOTUS definition. The new rule has not yet been proposed and several lawmakers have expressed concerns over returning to the broad Obama-era definition and resulting protections. EPA administrator Michael Regan said the agencies are "committed to establishing a durable definition of 'waters of the United States' based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation's waters, foster economic growth, and support thriving communities." To establish a new rule, EPA will first need to rescind the Trump-era rule, calling into question previous jurisdictional determinations. While a timeline for the new rule has not been announced, the EPA has committed to holding public outreach sessions later this year.
How Exponent Can Help
Exponent's environmental scientists and engineers have extensive experience with the CWA and its jurisdictional reach, and we use this experience to assist our clients whose permits and operations are expected to be affected by changes to the definition of WOTUS. With our interdisciplinary expertise in our Ecological & Biological Sciences Practice and Environmental & Earth Sciences Practice, we can evaluate the connections between navigable waters and adjacent waterbodies; assess interactions between groundwater and surface water (an issue in the Co of Maui v. Hawaii Wildlife Fund case); evaluate data characterizing water and sediment quality; prepare permit applications and assist in the negotiation of permit limits and conditions; and develop monitoring plans and implementation strategies.