On December 30, EPA and the Department of the Army released the pre-publication version of their final revised definition of Waters of the United States (WOTUS). The rule largely reverted to the pre-2015 definition with updates to reflect relevant court cases, new science, and the agencies’ technical expertise. The types of waters encompassed under WOTUS include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, and adjacent wetlands. AMWA submitted comments on the proposed version of this rule on February 4, 2022.
Most notably, the agencies include two tests to determine whether tributaries, wetlands, or other waters are included under WOTUS: the relatively permanent or the significant nexus standard stemming from the Supreme Court case Rapanos v. United States. The relative permanent standard identifies waters that will virtually always affect traditional navigable waters while the significant nexus standard relies on their connection to and effect on larger downstream waters.
In its comments, AMWA strongly advocated for exemptions for drinking water infrastructure and urged the agencies to finalize the best legally defensible and durable definition based on sound science and stakeholder input with only one rulemaking and refrain from a supplementary rulemaking process. While the agencies did not include an explicit exemption for drinking water, protections still exist for utilities under the Water Transfers Rule.
In the Fall 2022 Unified Agenda unveiled last week, the agencies indicated they intend to move forward with a supplemental WOTUS rulemaking “in light of additional stakeholder engagement and implementation considerations, scientific developments, litigation and environmental justice values.” This second rulemaking may be influenced by the ruling in Sackett v. EPA, a case questioning what wetlands are considered WOTUS, which is expected later this year.
The rule will go into effect 60 days after publication in the Federal Register. For a quick glance at what’s included in the rule, see the agencies’ public fact sheet. AMWA will continue to track developments and plans to provide input to EPA and the Department of the Army as it prepares its next round of revisions to the definition of WOTUS.