Waters of the United States (WOTUS) Revised Definition: Proposed Rule Published

A proposed rule to revise the definition of “waters of the United States” (WOTUS) was published in the Federal Register on December 7, 2021 ¹. This is the first rulemaking stemming from the agencies’ June 9, 2021, announcement of their intent to revise the WOTUS definition. The proposed definition is consistent with the United States Environmental Protection Agency (US EPA) and the Department of the Army (collectively, the Agencies) decision to halt implementation of the 2020 Navigable Waters Protection Rule and revert back to the pre-2015 WOTUS definition (See TRC’s September 29, 2021, post Interpretation of “Waters of the United States” (WOTUS) Reverts to Pre-2015 Regulatory Definition).

Comments on the proposed rulemaking will be accepted until February 7, 2022, and virtual public hearings will be held on Wednesday, January 12, 2022, from 10 a.m. to 1 p.m. Eastern Time; on Thursday, January 13, 2022, from 2 p.m. to 5 p.m. Eastern Time; and on Tuesday, January 18, 2022, from 5 p.m. to 8 p.m. Eastern Time.

In the proposed rule, WOTUS is interpreted to mean waters as defined by the 1986 regulations, with amendments to certain parts to incorporate United States Supreme Court decisions. Waters included in the WOTUS definition are summarized as:

• 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.
• “Other waters” that meet either the relatively permanent standard or the significant nexus standard.

In agreement with the 2008 Rapanos Guidance stemming from the United States Supreme Court Decision in Rapanos v. United States & Carabell v. United States (June 5, 2007), the “relatively permanent standard” means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters and 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”).

The Agencies are also proposing to repromulgate the longstanding exclusions from the definition of WOTUS for prior converted cropland and waste treatment systems. In addition, the Agencies are not making changes to their longstanding guidance that waters will continue to be considered traditional navigable waters, and thus jurisdictional under this provision of the proposed rule, if they:

• Are subject to section 9 or 10 of the Rivers and Harbors Act of 1899.
• Have been determined by a federal court to be navigable-in-fact under federal law.
• Are waters currently being used for commercial navigation, including commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments).
• Have historically been used for commercial navigation, including commercial waterborne recreation.
• Are susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.

Once enacted, the proposed rule will replace the Obama-era 2015 Clean Water Rule and the Trump-era 2020 Navigable Waters Protection Rule and revert back to the prior rule that the agencies have more experience in enforcing. The agencies argue in the pre-publication notice that “continuity with the 1986 regulations will minimize confusion and provide regulatory stability for the public, the regulated community, and the agencies, while protecting the nation’s waters.”

The definition of “waters of the United States” affects many Clean Water Act (CWA) programs that apply only to WOTUS, including:

• Water quality standards (total maximum daily loads) for impaired waters [CWA Section 303(d)]
• Oil spill prevention, preparedness and response programs [CWA Section 311]
• State and tribal water quality certification programs [CWA Section 401 certifications]
• National Pollutant Discharge Elimination System (NPDES) programs [CWA Section 402]
• Dredge and fill programs [CWA Section 404]

During the rulemaking process and until further notice, the Agencies are interpreting the WOTUS definition consistent with the pre-2015 regulatory program as stated by the Agencies in September 2021. To ensure you remain in compliance during this period of transition in the interpretation of the definition of WOTUS, we recommend that you:

• Discuss the implications of the changes in the definition of WOTUS with your regulating entity, particularly with respect to any permit applications or certifications under review.
• Re-evaluate the applicability of WOTUS to your site and your permitting and compliance requirements.
• Stay abreast of the rulemaking process and additional future changes to the WOTUS definition interpretation.

¹ Revised Definition of “Waters of the United States”, 86 Fed. Reg. 69372 (proposed December 7, 2021)(to be codified at 40 CFR Part 120, and 33 CFR Part 328).