Guardians of the Clean Water Act
by Transect Team, on Aug 19, 2021
Apparently deciding what counts as WOTUS is harder than finding an infinity stone.
The definition of waters of the U.S (WOTUS) is changing again, and maybe the fourth time's the charm?
On January 21, 2021 President Biden signed Executive Order 13990, which directed the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to review all federal regulations passed during the previous administration in accordance with his national goals around environment, health, and safety. A key focus of this review was the definition of “waters of the U.S.” (WOTUS), which are waterways and wetlands that meet certain requirements to warrant protection under the Clean Water Act.
The Biden administration is not the first to attempt to challenge the historic interpretation of which water bodies are covered by the Clean Water Act. Let’s review, shall we?
Regulations defining WOTUS were established with the passing of the Clean Water Act in 1972 and would not change for the next 40 years. Several Supreme Court cases attempted to offer clarity to the definition of WOTUS, though, in practice, there was still ambiguity. Many bodies of water remained unregulated. Then in 2015, the Obama administration established the Clean Water Rule, which granted categorical protection for bodies of water that had not historically received protection under the Clean Water Act. The rule did not so much change the definition of WOTUS, rather, it reduced the number of “case by case” WOTUS determinations by categorically determining certain water bodies as WOTUS. The rule also expanded the definition of “adjacent” waters, looping in many previously isolated water bodies as WOTUS.
Last year, in response to Obama’s Clean Water Rule, the Trump administration passed the Navigable Waters Protection Act (NWPA), which, for the first time in history, excluded ephemeral waters from the definition of WOTUS and therefore protection under the Clean Water Act. This rule particularly impacted arid states like New Mexico and Arizona where the 25 percentage point reduction in regulated waters left almost every one of their 1,500 streams unprotected.
So here we are, back to the Biden administration. Earlier this month, the USACE announced that a revised rule making that will include the following:
- A foundational rule to restore longstanding protections that were in place prior to 2015 and,
- A second rule to further refine and build upon the regulatory foundation, stating the administration is "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.’’”
Maybe the Biden administration can finally craft a waters protection rule that adequately protects our nation’s waters within the intent of the original Clean Water Act while simultaneously appeasing the various public and private stakeholders that will invariably be a thorn in his side during this process. But considering the key role that an abundant clean water supply will play as our world fights the effects of an ever-warming climate, it is more important than ever to get this rule right.
The public meetings are being held during web conferences throughout August 2021. Additional conferences may occur in September 2021 if needed. Public feedback via open docket or participation is welcomed to aid the rule making process. To submit feedback, visit the EPA website. Participation at the meetings will be held on a first come, first serve basis.