“Waters of the U.S.” definition re-evaluated, again

The Biden administration is planning to release a new definition of what constitutes a “water of the U.S.” under the Clean Water Act later this year.

The Environmental Protection Agency and the Army Corps of Engineers, the agencies charged with implementing those regulations, first announced the upcoming update nearly a year ago.

The regulatory definition of “waters of the U.S” determines the scope of U.S. Clean Water Act protections against pollution discharge for water bodies. The current rule, finalized by the Trump administration in 2020, restricts the law’s scope by excluding more than 18% of streams and 51% of wetlands countrywide that do not have continuous surface water connections to larger waterways. Those excluded water bodies were covered by the previous rule approved in 2015.

In early December 2021, the agencies released a proposed rule formally withdrawing the 2020 rule. Under that proposal, the EPA and Army Corps would formally revert to the 2015 rule, which the agencies have been operating under recently anyway, after lawsuits challenged the applicability of the Trump-era rule in recent months.

The agencies are accepting comments until Feb. 7, on the proposal to withdraw the 2020 rule. They are also holding virtual public hearings on Jan. 12, 13 and 18.

Also in December, the administration announced that a new proposed definition of “waters of the U.S.” would be released in February, but recent reporting from E&E News indicates that a definition likely won’t be ready for review and comment until further into 2022.

The Wildlife Society and the American Fisheries Society submitted joint comments in May 2019 strongly opposing the 2020 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.

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