EPA And Department of Army Issue New Proposed WOTUS Definition

The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army have proposed to reestablish the pre-2015 definition of "waters of the United States" (WOTUS).

The proposed rule is updated to reflect U.S. Supreme Court precedent, the agencies said.

The American Public Power Association (APPA) in September 2021 submitted comments in response to a request for recommendations to revise and refine the regulatory definition of WOTUS. In those comments, APPA advocated that a new definition must draw clear jurisdictional lines, provide needed predictability for the regulated community, and be consistent with the Clean Water Act and Supreme Court precedent.

In 2021, U.S. district courts in Arizona and New Mexico vacated the prior administrations Navigable Waters Protection Rule (NWPR). In light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021.

The agencies have indicated their intention to continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.

EPA and the Army are interpreting WOTUS to mean the waters defined by the longstanding 1986 regulations.

Therefore, in the proposed rule, the agencies interpret the term WOTUS to include:

  • Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands;
  • Most impoundments of WOTUS;
  • Tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the Army relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and
  • "Other waters" that meet either the relatively permanent standard or the significant nexus standard.

The agencies interpret the significant nexus standard to mean "waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas."

Another amendment to the older regulations is to the term "relatively permanent standard," which has been updated to mean waters that are "relatively permanent, standing, or continuously flowing and waters with a continuous surface connection to such waters."

The proposal maintains the waste treatment system exclusion, returning to the 1986 regulatory version of that exclusion with ministerial changes made in the NWPR.  The proposal would remove the favorable definition of waste treatment system that was codified in the NWPR.

For more information on the proposed rule and registering for the virtual public hearings, click here.