EPA and Army gather public input for plan to revise definition of WOTUS
The U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (Army) have completed a series of listening sessions intended to seek input from stakeholders on real-world and practical experience with Clean Water Act (CWA) programs and requirements that rely on the definition of “waters of the United States,” or WOTUS. Through these sessions, the agencies gained insights representing on-the-ground perspectives of farmers and ranchers, homebuilders and construction contractors, miners and energy producers, manufacturers, states, Tribes, elected officials, environmental groups and the general public.
“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” said EPA Administrator Lee Zeldin in an EPA press release. “These listening sessions gave us real-world perspectives as we work toward a proposed rule that follows the Supreme Court decision in Sackett, ends the regulatory uncertainty and ping-pong that has persisted for years, supports our nation’s farmers who feed and fuel the world, and advances the agency’s Powering the Great American Comeback initiative.”
The definition of WOTUS guides CWA implementation, including whether farmers, landowners and businesses must secure permits before they can pursue a project. Under the Biden Administration, EPA and the Army’s Amended 2023 definition of WOTUS failed to follow the law and implement the Supreme Court’s holding in Sackett v. Environmental Protection Agency, stated an EPA press release.
EPA and Army moved quickly by issuing joint guidance aligned with Sackett, announcing a plan to revise the amended 2023 definition of WOTUS, and initiating these listening sessions to obtain public input.
“The U.S. Army Corps of Engineers plays a key role in implementing the Clean Water Act,” said Acting Assistant Secretary of the Army for Civil Works Lee Forsgren in an EPA press release. “The importance of input from all our stakeholders including landowners, local governments, the States, Tribes and others is critical to how we undertake our statutory responsibilities. We understand the importance of communication and appreciate the feedback we received as we move forward together with EPA on this important effort.”
Over the course of nine listening sessions, including two public sessions in West Virginia and Utah, EPA heard from people who are frustrated with the constantly shifting WOTUS definition.
Many attendees of the listening sessions strongly supported EPA and the Army's plan to revise the 2023 WOTUS definition, urging the agencies to provide consistency for the regulated community that will stand the test of time. For some, this feedback was based on confusion over jurisdictional waters on agricultural land such as ditches, stock ponds and wetlands. The agencies also heard frustration from the on-the-ground experience of homebuilders and other industry stakeholders that are directly impacted by the definition of WOTUS.
Many supported the federal environmental protections tied to the CWA. Many also requested regulatory predictability to build and maintain the infrastructure that advances local and regional economies. Others highlighted the importance of cooperative federalism under the CWA and urged the agencies to delegate decision-making to states and local authorities. Attendees also highlighted the need to consider hydrologic diversity across the nation, such as wetlands in the southeast, prairie potholes in the Midwest, ephemeral washes in the arid West, and permafrost in Alaska.
EPA and Army intend to issue a proposed rule in the coming months that will prioritize clear interpretation and implementation of the law, reducing red-tape, cutting overall permitting costs, and lowering the cost of doing business in communities across the country while protecting the nation’s waters from pollution. Following public comment on the proposal, the agencies will review input with the intention of issuing a final rule by the end of 2025.