Copyright: Kevin Grant
A revised definition of waters subject to jurisdiction under the Clean Water Act (Waters of the United States; WOTUS) was published by Environmental Protection Agency (EPA) and the Army Corps in the December 7, 2021, Federal Register.
The revision to the 2020 rule promulgated by the prior Administration was clearly signaled in the January 2021 Executive Order. The newly proposed rule (which has been circulating unofficially) reaches back to the version largely in effect in 1986. NMHC, as part of a broad coalition of impacted interests, will be submitting comments due February 7, 2022.
The 1986 definition of WOTUS has been subject to legal challenge at the Supreme Court and was itself the impetus for failed congressional efforts at reform and a controversial 2015 rulemaking.
Under the proposed rule, WOTUS include: traditional navigable waters, interstate waters, and the territorial seas, and their adjacent wetlands; most impoundments; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and ‘‘other waters’’ that meet either the relatively permanent standard or the significant nexus standard.
The ‘‘relatively permanent standard’’ means waters that are relatively permanent, standing or continuously flowing and waters with a continuous surface connection to such waters. The ‘‘significant nexus standard’’ means waters that either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.