EPA advances WOTUS rewrite

By Hannah Northey | 10/13/2021 03:24 PM EST

The White House Office of Management and Budget is reviewing EPA's new proposed definition of which water bodies should be characterized as a "water of the U.S." Francis Chung/E&E News

The Biden administration has crafted a new definition of “water of the U.S.,” wading into a politically explosive regulation that has riled lawmakers, courts, farmers and environmental groups for decades.

Today, EPA and the Army Corps of Engineers sent a proposed rule to the White House’s Office of Management and Budget to revise the definition of what constitutes a “water of the U.S.,” or WOTUS.

“This action marks an important step in the agencies’ efforts to ensure clean and safe water for all,” EPA spokesperson Nick Conger wrote in an email. “EPA and Army are committed to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries.”

While details of that proposal have yet to be unveiled, EPA’s move is significant. The Biden administration has said it wants to craft a definition that is durable and “enduring” after decades of regulatory changes, lawsuits and uncertainty.

Most recently, the Trump administration’s Navigable Waters Protection Rule, which relied on the narrow interpretation of Clean Water Act jurisdiction offered by the late Justice Antonin Scalia in Rapanos v. U.S. , was struck down by a federal district court in Arizona (Greenwire, Aug. 30). The Trump administration’s rule significantly narrowed the law’s reach, pulling back what wetlands and streams were jurisdictional by about 51 percent and 18 percent, respectively (Greenwire, Jan. 23, 2020).

Since the court’s decision, EPA has reverted to the 1986 definition of WOTUS and relied on 2008 guidance from the George W. Bush administration about how to apply that definition.

But the legal slog and confusion around WOTUS continue. Last month, a conservative law firm asked the Supreme Court to provide a definitive answer on the scope of the Clean Water Act (E&E News PM, Sept. 23).

EPA and the Army Corps of Engineers have held a series of meetings to take public comment and gather input on how to establish a regulatory foundation and build on that foundation to craft a "durable" definition of WOTUS.

Today, that process continued with EPA and Army officials asking for input on the potential selection and location of 10 sites for roundtables to take input on how various regions are affected by the definition of WOTUS, and to learn about stakeholders’ experience, challenges and opportunities under different regulatory regimes.

The roundtables, EPA said, are aimed at informing the administration’s work to produce a “durable and workable” definition of WOTUS.