WOTUS WOES – Litigation, Legislation, or Regulation?

Where to begin? The 1972 amendments to the Clean Water Act (CWA) established federal jurisdiction over the navigable waters defined as the “waters of the United States” (WOTUS). However, the text of the CWA does not define WOTUS but provides discretion for the United States Environmental Protection Agency (U.S. EPA) and the U.S. Department of the Army (Corps of Engineers) to define WOTUS within regulations. In the 1980s, U.S. EPA and Corps of Engineers created a definition for WOTUS. In 2015, after multiple court cases, U.S. EPA and Corps of Engineers revised the definition to clarify what waters upstream from the traditional navigable waters were included in the definition and therefore can be regulated by federal and state programs. In June 2020, the definition was revised again. On June 9, 2021, U.S. EPA and Corps of Engineers announced their intent to initiate new rulemaking “that restores the protections in place prior to the 2015 WOTUS implementation and develops a new rule to establish a durable definition of WOTUS.” Of course, it is not everyone’s opinion that the 2015 rule is flawed. On August 4, 2021, U.S. EPA and Corps of Engineers started the latest rulemaking process by publishing in the Federal Register, Notice of Public Meetings Regarding ‘‘Waters of the United States’’; Establishment of a Public Docket; Request for Recommendations. Throughout August and September, public meetings were scheduled to gather pre-proposal input.

In the meantime, several lawsuits have been filed against the 2020 WOTUS rule.  On August 30, 2021, the U.S. District Court for the District of Arizona ruled the Trump administration’s Navigable Waters Protection Rule (NWPR) was too flawed to keep in place. Immediately following the decision, the U.S. EPA and Corps of Engineers announced that they would be following the Pre-2015 regulatory definition and practices until further notice.  Other district courts have also remanded the rule.

What programs does the decision affect?

The federal CWA sections that are affected by the definition of WOTUS include Water Quality Standards, Impaired Waters and Total Maximum Daily Loads (TMDLs), Oil Prevention and Preparedness Programs, 401 Certifications, National Pollutant Discharge Elimination System (NPDES) permitting, and permitting discharges of dredged or fill material.

What does this mean for the regulated community?

For states with primacy for their water programs, the “waters of the state” or “waters of the commonwealth” will continue to apply to industrial wastewater and stormwater permits.  For states without definitions of state waters, the pre-2015 WOTUS definitions may be applicable.  For federal programs such as Corps of Engineer permitting, National Environmental Policy Act (NEPA) determinations, and CWA programs such as the oil spill prevention control and countermeasure (SPCC) plan and facility response plan (FRP), all current and future work will be reviewed based on the pre-2015 WOTUS rules.  Affected sites should re-evaluate affected applications, plans, and projects in terms of the pre-2015 WOTUS for the foreseeable future.

U.S. EPA and Corps of Engineers will continue through the regulatory process to update the WOTUS definition and additional cases are making their way through the courts; however, in the meantime, we will be operating under the pre-2015 rules and interpretations.  ALL4 will continue to watch the regulatory development.  If you have questions on WOTUS or other water issues, contact Karen Thompson at kthompson@all4inc.com or other technical experts in any one of our offices.