The U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (the agencies) announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS) which had been in place for decades, updated to reflect consideration of Supreme Court decisions. This proposed rule would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.
The U.S. District Courts for both Arizona and New Mexico have vacated the Navigable Waters Protection Rule. In light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021. Today’s action is an important step because it would solidify the rules of the road for a stable implementation of “waters of the United States” while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.
The proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely.
EPA and Army conducted extensive pre-proposal engagement, including Federalism and Tribal consultation, to help inform the content of the proposed rule. The agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.
Click for more information on submitting a written comment on the proposal or to register for the virtual public hearings on the proposed rule.