August 4 -- The Environmental Protection Agency (EPA) and the Department of the Army Corps of Engineers solicit public input by September 3, 2021 regarding agency plans to revise the definition of “waters of the United States.” This process includes two rulemakings: A foundational rule to restore longstanding protections, and a second rulemaking process that builds on that regulatory foundation.
The forthcoming foundational rule will propose to restore the regulations defining “waters of the United States” that were in place for decades until 2015, with updates to be consistent with relevant Supreme Court decisions. The agencies will also pursue a separate, second rulemaking process that further refines and builds upon that regulatory foundation.
The agencies intend to engage with state and tribal co-regulators and the public to inform these two rulemakings. The agencies are committed to learning from the past regulatory approaches—the pre-2015 regulations and guidance, the 2015 Clean Water Rule, and the 2020 Navigable Waters Protection Rule—while engaging with stakeholders and crafting a refined definition of “waters of the United States.”
This document includes a schedule for initial public meetings to hear from interested stakeholders on their perspectives on defining “waters of the United States” under the Clean Water Act and how to implement that definition as the agencies pursue this process. The agencies will hold public meetings on August 18, August 23, August 25, August 26, and August 31, 2021. The agencies are also accepting written recommendations from members of the public and are planning further opportunities for engagement. These opportunities will include 10 geographically focused roundtables that will provide for broad, transparent, regionally focused discussions among a full spectrum of stakeholders.
“Waters of the United States” is a threshold term in the Clean Water Act that establishes the geographic scope of federal jurisdiction under the Act. Many Clean Water Act programs, including sections 303 (Water Quality Standards and Total Maximum Daily Loads), 311 (oil spill programs), 401 (water quality certifications), 402 (pollutant discharge permits), and 404 (dredged and fill material discharge permits), address “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”
Since the 1970s, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (“Army,” collectively “the agencies”) have defined “waters of the United States” by regulation. The Navigable Waters Protection Rule (NWPR), the agencies' most recent regulation revising the definition of “waters of the United States,” was published in the Federal Register on April 21, 2020 (85 FR 22250). The NWPR defines categories of waters that are jurisdictional and categories that are not jurisdictional. Eighty-one parties have filed fifteen complaints challenging the NWPR in eleven different district courts.
On January 20, 2021, the President signed Executive Order 13990 directing federal agencies to review rules issued in the prior four years that are or might conflict with the policy stated in the order. The order provides that “[i]t is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.” 86 FR 7037, section 1 (published January 25, 2021, signed January 20, 2021). The order “directs all executive departments and agencies (agencies) to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last four years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.” Id. at 7037, section 2(a). “For any such actions identified by the agencies, the heads of agencies shall, as appropriate and consistent with applicable law, consider suspending, revising, or rescinding the agency actions.” Id. The order also specifically revoked Executive Order 13778 of February 28, 2017 (Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule), which had initiated development of the agencies' two-step process to repeal and replace the 2015 Clean Water Rule, culminating in promulgation of the NWPR.
In conformance with Executive Order 13990, the agencies reviewed the NWPR and have decided to initiate two new rulemakings. The agencies considered the following factors in making this decision, including but not limited to: The text of the Clean Water Act; Congressional intent and the objective of the Clean Water Act; Supreme Court precedent; the current and future harms to the chemical, physical, and biological integrity of the nation's waters due to the NWPR; concerns raised by stakeholders about the NWPR, including implementation-related issues; the principles outlined in the Executive Order; and issues raised in ongoing litigation challenging the NWPR.
EPA and the Army have substantial and legitimate concerns that the NWPR did not appropriately consider the effect of the revised definition of “waters of the United States” on the integrity of the nation's waters. Notwithstanding these concerns and ongoing litigation, the agencies will continue to implement the NWPR until it is no longer in effect, as a result of either a new final rule going into effect or by virtue of a court order.
The agencies' rulemaking process will be guided by the following considerations:
Ensure the rule will further the principal objective of the Act as set forth by Congress, which is to “restore the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251.
Consider the latest peer-reviewed and relevant science.
Prioritize practical implementation approaches for state and tribal co-regulators.
Reflect the experiences of, and input received from, landowners, the agricultural community, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
FR notice: https://www.federalregister.gov/documents/2021/08/04/2021-16643/notice-of-public-meetings-regarding-waters-of-the-united-states-establishment-of-a-public-docket