Administration to replace wetlands regulations

The Environmental Protection Agency and the Army Corps of Engineers announced initial plans to replace a rule finalized during the Trump administration defining the “waters of the U.S.”—or WOTUS—under the Clean Water Act.

The regulatory definition of “waters of the U.S” determines the scope of Clean Water Act protections for water bodies against pollution discharge. The rule finalized in 2020 restricted the scope of the Clean Water Act by excluding more than 18% of streams and 51% of wetlands countrywide that do not have continuous surface water connections to larger waterways.

The Wildlife Society and the American Fisheries Society submitted joint comments in May 2019, strongly opposing that rule and instead supporting the 2015 WOTUS definition. In their comments, the societies noted that, unlike the 2015 rule, the 2020 definition was not supported by peer-reviewed science and was not subject to a rigorous independent review process.

While the current administration has not provided a timeline for revoking the current rule, it has indicated new rulemaking will occur. According to E&E News, some experts predict a rulemaking to come later this year, officially revoking the 2020 rule and reverting the agencies back to the 1986 WOTUS definition until a separate rulemaking can be completed. That process could take years.

To begin moving toward a new definition, the EPA and the Corps will convene 10 regional roundtables during the upcoming fall and winter to allow the public to share their experiences with WOTUS. The agencies hope to elicit information on geographic similarities and differences, particular water resources characteristic of or unique to each region and site-specific feedback about implementation. The agencies are also soliciting written recommendations on how to craft a legally-defensible definition of WOTUS.

The 2020 rule faced several legal challenges in federal court. In June, the Biden administration asked the judge to send the rule back to EPA for reconsideration. In the interim, the 2020 rule remains in place.

While some members of Congress support the coming rulemaking, others have taken action to prevent the agencies from moving away from the 2020 rule. In late July, 30 U.S. republican senators introduced the “Navigable Waters Protection Act of 2021,” (S. 2567) which would codify the Trump-era rule. Similarly, the “Defense of Environment and Property Act of 2021” (S. 2517) would exclude ephemeral or intermittent streams from federal jurisdiction. Companion legislation is expected in the U.S. House of Representatives.

Read TWS’s comments on the 2015 proposed Clean Water Act rule and the 2019 proposed Clean Water Act rule