Revised Def. of Waters of the United States (WOTUS)

See below for the proposal:

REVISED DEFINITION OF “WATERS OF THE UNITED STATES”

A Proposed Rule by the Engineers Corps and the Environmental Protection Agency on 12/07/2021

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AGENCY:

Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act. This proposal is consistent with the Executive Order signed on January 20, 2021, on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed the agencies to review the agencies' rule promulgated in 2020 defining “waters of the United States.” This proposed rule would meet the objective of the Clean Water Act and ensure critical protections for the nation's vital water resources, which support public health, environmental protection, agricultural activity, and economic growth across the United States.

DATES:

Comments must be received on or before February 7, 2022. Please refer to the SUPPLEMENTARY INFORMATION section for additional information on the public hearing.

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I. Executive Summary (only a portion is copied below)

Congress enacted the Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816, as amended, 33 U.S.C. 1251 et seq. (Clean Water Act or Act) “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). In doing so, Congress performed a “total restructuring” and “complete rewriting” of the existing statutory framework, seeking to better protect the quality of the nation's waters. City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). Congress thus intended the 1972 Act to be a bold step forward in providing protections for the nation's waters.

Central to the framework and protections provided by the Clean Water Act is the term “navigable waters,” ^[1] defined in the Act as “the waters of the United States, including the territorial seas.” 33 U.S.C. 1362(7). This term establishes the extent of most federal programs to protect water quality under the Act—including, for example, water quality standards, impaired waters and total maximum daily loads, oil spill prevention, preparedness and response programs, state and tribal water quality certification programs, and dredged and fill programs—because such programs apply only to “waters of the United States.”

As the Supreme Court presciently noted decades ago, defining this term requires the EPA and the U.S. Department of the Army (Army) (together, “the agencies”) to “choose some point at which water ends and land begins. Our common experience tells us that this is often no easy task: The transition from water to solid ground is not necessarily or even typically an abrupt one. Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogs—in short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land. Where on this continuum to find the limit of `waters' is far from obvious.” United States v. Riverside Bayview Homes, 474 U.S. 121, 132 (1985) (“ Riverside Bayview” ).^[2]

In the nearly five decades since the Clean Water Act was enacted, the agencies have undertaken the challenge of developing and implementing a durable definition of the term “waters of the United States” that draws the line on the Riverside Bayview “continuum” consistent with the objective of the Act—to restore and maintain the chemical, physical, and biological integrity of the nation's waters—based on science, and refined over the years by extensive experience in implementing the definition in the field. In 2020, however, the agencies issued a rule, called the “Navigable Waters Protection Rule” (NWPR), which substantially departed from prior rules defining “waters of the United States.” The earlier rules had been based on scientific concepts, implementation experience, and consideration of how the water quality implications of the definitions would advance the Clean Water Act's statutory objective. While the NWPR's interpretation of the statute and case law overlaps in some respects with those prior regulations—for example, its understanding that the statute authorizes the agencies to regulate waters beyond those that are navigable-in-fact—it departed from prior regulations by diminishing the appropriate role of science and Congress's objective in the Clean Water Act. The NWPR provided less protection and could have allowed far more impacts to the nation's waters than any rule that preceded it.

In response to President Joseph R. Biden Jr.'s Executive Order 13990, 86 FR 7037 (January 25, 2021), which directed federal agencies to review certain regulations, EPA and the Army undertook a review of the NWPR. The agencies found that the NWPR did not appropriately consider the water quality impacts of its approach to defining “waters of the United States,” in contravention of Congress's objective in the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and that the rule's reduction in the scope of protected waters could have a potentially extensive and adverse impact on the nation's waters. The agencies' ongoing analyses of waters that fall outside of the Act's protections because of the NWPR support these findings.

Following a federal district court decision vacating the NWPR on August 30, 2021, the agencies halted implementation of the NWPR and began interpreting “waters of the United States” consistent with the pre-2015 regulatory regime.^[3 4] Though EPA and the U.S. Army Corps of Engineers (Corps) are not currently implementing the NWPR, the agencies are aware that further developments in litigation over the rule could bring the rule back into effect. For these reasons, among others discussed more fully below, the agencies have decided that prompt replacement of the NWPR through the administrative rulemaking process is vital.

In order to ensure necessary federal protections for the nation's waters, the agencies are proposing to exercise their discretion under the statute to return generally to the familiar pre-2015 definition that has bounded the Act's protections for decades, has been codified multiple times, and has been implemented by every Administration for the last 35 years, from that of Ronald Reagan through Donald Trump, which re-promulgated the pre-2015 regulations. See In re EPA & Dep't of Def. Final Rule, 803 F.3d 804, 808 (6th Cir. 2015). The pre-2015 regulations were largely in place for both agencies in 1986 and are thus commonly referred to as “the 1986 regulations.” ^[5]

In this proposed rule the agencies are exercising their discretionary authority to interpret “waters of the United States” to mean the waters defined by the longstanding 1986 regulations, with amendments to certain parts of those rules to reflect the agencies' interpretation of the statutory limits on the scope of the “waters of the United States” and informed by Supreme Court case law. Thus, in the proposed rule, the agencies interpret the term “waters of the United States” to include: Traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments of “waters of the United States”; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the 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 “relatively permanent standard” means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters. The “significant nexus standard” means 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 (the “foundational waters”). With these amendments to the 1986 regulations, the proposed rule is within the proper scope of the agencies' statutory authority and would restore and maintain the chemical, physical, and biological integrity of the nation's waters.

The proposed rule advances the Clean Water Act's statutory objective as it is based on the best available science concerning the functions provided by upstream tributaries, adjacent wetlands, and “other waters” to restore and maintain the water quality of downstream foundational waters. By contrast, the agencies conclude that the NWPR, which this proposed rule would replace, and which found jurisdiction primarily under the relatively permanent standard, established a test for jurisdiction that did not adequately address the impacts of degradation of upstream waters on downstream waters, including traditional navigable waters, and was therefore incompatible with the objective of the Clean Water Act. While the “more absolute position” taken by the NWPR “may be easier to administer,” it has “consequences that are inconsistent with major congressional objectives, as revealed by the statute's language, structure, and purposes.” County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1477 (2020).

In developing the proposed rule, the agencies also considered the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies' experience and expertise after more than 30 years of implementing the 1986 regulations defining “waters of the United States,” including more than a decade of experience implementing those regulations consistent with the Supreme Court's decisions in Riverside Bayview, SWANCC, and Rapanos. The agencies' interpretation also reflects consideration of the statute as a whole, including section 101(b), which states that “it is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources.” 33 U.S.C. 1251(b). The proposed rule's limits appropriately draw the boundary of waters subject to federal protection by ensuring that where upstream waters significantly affect the integrity of waters and the federal interest is indisputable—the traditional navigable waters, interstate waters, and territorial seas—Clean Water Act programs would apply to ensure that those downstream waters are protected. And where they do not, the agencies would leave regulation to the states and tribes. The proposed rule's relatively permanent and significant nexus limitations are thus based on the agencies' conclusion that together, those standards are consistent with the statutory text, advance the objective of the Act, are supported by the scientific record and Supreme Court case law, and appropriately consider the policies of the Act. In addition, because the proposed rule reflects consideration of the agencies' experience and expertise, as well as updates in implementation tools and resources, it is familiar and implementable.

While there are case-specific determinations that would need to be made under this proposed rule, that was also true under the NWPR and many other regulatory regimes where agencies must balance competing factors. The agencies, moreover, believe that a return to the pre-2015 definition would provide a known and familiar framework for co-regulators and stakeholders. In addition, the clarifications proposed here and the intervening advancements in implementation resources, tools, and scientific support ( see section V.D.3.d of this preamble) would address some of the concerns raised in the past about timeliness and consistency of jurisdictional determinations under this regulatory regime.

Through this rulemaking process, the agencies will consider all public comments on the proposed rule including changes that improve clarity, implementability, and long-term durability of the definition. The agencies will also consider changes through a second rulemaking that they anticipate proposing in the future, which would build upon the foundation of this proposed rule.

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In 2016, NWI developed a more comprehensive dataset (NWI Version 2) that is inclusive of all surface water features in addition to wetlands. The agencies can use this dataset to help assess potential hydrologic connectivity between waterways and wetlands in support of jurisdictional decisions. For example, the NWI Version 2 dataset can be used in part to help the agencies identify wetlands that do not meet the definition of adjacent (“other waters”). This NWI Version 2 dataset provides more complete geospatial data on surface waters and wetlands than has been available in the past and provides a more efficient means to make determinations of flow and water movement in surface water basins and channels, as well as in wetlands.