Vol. 29, No. 10 ● November 23, 2021
Latest on WOTUS Definition Changes
UPDATE, December 7, 2021: The proposed definition of Waters of the U.S. was published in the Federal Register; public comment window closes February 7, 2022.
The EPA and Corps are aiming for a more “durable” WOTUS definition
On November 18, 2021, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced their intention to re-establish a more “durable” definition of the Waters of the United States (WOTUS). The definition reverted to its 1986 status, for the most part, and also follows guidance from subsequent Supreme Court decisions; this is how the definition has been treated since court decisions in late summer 2021.
Two recent attempts at revising the WOTUS definition (the 2015 Clean Water Rule and the 2020 Navigable Waters Protection Rule) have been revoked or struck down in court. The changes those two rules proposed, along with the court cases that marked their evolution and implementation, created an environment of uncertainty surrounding WOTUS protection and implications for impacts. Our collection of related articles from 2015 to the present is provided below with links.
The EPA and the Corps solicited stakeholders and the public at large to inform their process; see our August 19 edition of Field Notes for details. Once the forthcoming proposed rule is published in the Federal Register, the agencies will take comments for an additional 60 days. It is also important to note that the preamble to this proposed rule indicates that the agencies “…will also consider changes through a second rulemaking that they anticipate proposing in the future, which would build upon the foundation of this proposed rule.” So suffice to say, WOTUS definition changes are far from over.
Wetland Studies and Solutions, Inc. will continue to follow the changing definition and will update you in Field Notes as more information becomes available and the regulatory agencies issue guidance. Important issues include:
existing Jurisdictional Determinations of the limits of Waters of the U.S.
future Jurisdictional Determinations
projects that are pursuing authorization for impacts to Waters of the U.S., and
implications for state-level protection measures for surface waters.
In the meantime, please contact us with your questions about permitting and the extent of jurisdictional waters on your projects.
Northern Virginia/headquarters: Ben Rosner, Christie Blevins, or Mark Headly
Hampton Roads: Bob Kerr or Mark McElroy
Central Virginia: Rebecca Napier
Southwestern Virginia: Nathan Staley
Maryland: Mike Klebasko or Scott Petrey
You can read about changes to the WOTUS definition in our previous Field Notes articles:
- Back to 1986 for the Waters of the U.S. Definition (What’s Old is New Again), August 31, 2021
- Public Comment Period Ahead of WOTUS Rulemaking, August 19, 2021
- Navigable Waters Protection Rule in Effect, June 25, 2020
- UPDATE: WOTUS, WOTUS Everywhere, But Maybe Not?, April 21, 2020
- WOTUS, WOTUS Everywhere, But Maybe Not?, January 27, 2020
- 2015 Waters of the U.S. Rule Repealed, September 13, 2019
- WOTUS, WOTUS, Everywhere… or Not?, March 7, 2019
- Waters of the U.S.: New Definition Proposed, December 11, 2018
- WOTUS Definition in Limbo – EPA Delays Return to Pre-2015 Definition, November 8, 2018
- Federal Ruling Creates Delay in Corps of Engineers Process, August 23, 2018
- 6th Circuit Court Vacates WOTUS Rule Stay, April 11, 2018
(Reprinted with permission from the National Association of Home Builders. This article originally appeared in the February 28, 2018 edition of NAHB Now.)
- WOTUS 2020 - EPA and Department of the Army Delay Clean Water Rule of 2015, February 23, 2018
- A Graphic Description of WOTUS - Wetlandia, July 9, 2015
- EPA and COE Redefine Which Wetlands and Streams are Federally Regulated, June 2, 2015