Revising the Definition of "Waters of the United States"
On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army (“the agencies”) announced the signing of a proposed rule to revise the definition of “waters of the United States.” This proposal marks a key milestone in the regulatory process announced in June, 2021. On December 7, 2021, the proposed rule was published in the Federal Register. The public comment period is now open and will close on February 7, 2022.
The agencies propose to put back into place the pre-2015 definition of “waters of the United States,” updated to reflect consideration of Supreme Court decisions. This familiar approach 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 current implementation and future regulatory actions.
In developing the proposed rule, EPA and the Army reviewed and considered the extensive feedback and recommendations the agencies received from states, tribes, local governments, and stakeholders throughout consultations and pre-proposal meetings and webinars.
Additional Materials
- See Docket ID No. EPA-HQ-OW-2021-0602 on Regulations.gov for additional information.
- The comment period on this proposed rule closes on February 7, 2022.
- Press Release
- Economic Analysis for the Proposed "Revised Definition of 'Waters of the United States'" Rule (pdf)
- Technical Support Document for the Proposed “Revised Definition of ‘Waters of the United States’” Rule (pdf)
- Public Outreach and Stakeholder Engagement Activities
- Current Implementation
Announcement of the Intention to Revise the Definition of "Waters of the United States"
On June 9, 2021, the U.S. Environmental Protection Agency and the Department of the Army announced their intent to revise the definition of "waters of the United States." This process includes two rulemakings: a foundational rule to restore longstanding protections, and an anticipated second rule that builds on that regulatory foundation.
Request for Remand and Supporting Documentation
Stakeholder Engagement and Pre-Proposal Recommendations
On July 30, 2021, the agencies announced stakeholder engagement opportunities, including the agencies’ intent to host ten regionally focused roundtables. EPA and Army announced on October 13, 2021, a process for stakeholders to submit nomination letters for a slate of nominees to potentially be selected for one of these geographically focused roundtables. More information about the regional roundtables and the nomination process can be found here.
Also on July 30, 2021, the Agencies announced a schedule for initial public meetings to hear from interested stakeholders their perspectives on defining "waters of the United States" and how to implement that definition as the agencies pursue this process. The public meetings were held as web conferences in August and September 2021. More information regarding the public meetings, including recordings of the meetings, can be found here.
The agencies intend to engage with state and tribal co-regulators and the public to inform these two rulemakings. For more information regarding federalism and tribal consultation, please contact CWAwotus@epa.gov. Additional information about tribal consultation may also be found on the Tribal Consultation Opportunities Tracking System website.
Executive Order 13990
Executive Order 13990 on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (Jan. 20, 2021) directed EPA and the Army “to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations [including the Navigable Waters Protection Rule or “NWPR”] and other actions during the last four years that conflict with these important national objectives.”
The order also specifically revoked Executive Order 13778 of February 28, 2017 (Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule), which resulted in promulgation of the NWPR.
The order provides that “[i]t is, therefore, the policy of my Administration to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.”
In conformance with Executive Order 13990, the agencies reviewed the NWPR. See also Fact Sheet: List of Agency Actions for Review. The agencies have completed their review of the NWPR and determined that the rule must be replaced.