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WOTUS Pendulum Continues to Swing; NACWA to Weigh In

August 5, 2021

Earlier this year, EPA and the Department of the Army announced their intent to revise the definition of “waters of the United States” (WOTUS) under the Biden Administration with the goal of developing a new rule that is durable and supports human health, environmental protection, and the economy. This announcement highlights this Administration’s desire to restore surface water protections put in place prior to the current WOTUS definition (e.g., The Navigable Waters Protection Rule). 

On July 30, EPA Administrator Regan offered further details, including several upcoming regional stakeholder roundtables and outreach opportunities in their effort to develop a more “reasonable” definition of WOTUS that considers all stakeholder input. The virtual stakeholder meetings require registration and will be held on:

  • August 18 from 3:00 to 5:00 PM ET
  • August 23 from 1:00 PM to 3:00 PM ET
  • August 25 (for small entities only) from 3:00 to 5:00 PM ET
  • August 26 from 6:00 PM to 8:00 PM ET
  • August 31 from 3:00 PM to 5:00 PM ET

More information on participation in these outreach meetings can be found on EPA’s website.

EPA is also soliciting written feedback and will open a Federal Register docket for 30 days for public comments. While a pre-publication version notice of the public meetings and request for feedback is available, the official notice has not yet been published in the Federal Register. Publication should occur any day and NACWA will inform members when this is available.

As EPA moves to repeal and replace the Navigable Waters Protection Rule, two regulatory actions will occur. EPA and the Department of the Army intend to restore the “longstanding Clean Water Act regulations that were in place decades prior to 2015” supported by U.S. Supreme Court precedent and propose a second rule that “builds” on this regulatory foundation.

For these stakeholder meetings, EPA is particularly seeking feedback on the following:

  1. Implementation
  2. Regional, State and Tribal Interests
  3. Science
  4. Environmental Justice
  5. Climate Implications
  6. The Scope of Jurisdictional Tributaries
  7. The Scope of Jurisdictional Ditches
  8. The Scope of Adjacency
  9. Exclusions from the Definition

NACWA will be participating in the stakeholder outreach efforts and submitting comments to EPA and the Army Corps of Engineers urging that any revised definition must maintain the vital existing exclusions for wastewater treatment systems, stormwater control features, wastewater recycling, and groundwater. These exclusions have traditionally not been included in the definition of jurisdictional WOTUS and have been in place either through regulations or assumed in practice for decades.

As EPA moves forward on soliciting stakeholder feedback and comments, NACWA welcomes any additional member input on any of the specific feedback “asks” from EPA and the Army Corps particularly regarding science, environmental justice and climate.

Please contact Emily Remmel, NACWA’s Director of Regulatory Affairs, for more information or if you have comments to contribute on EPA and the Corps’ newest WOTUS pendulum swing.

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