EPA and Army Corps Announce Public Meetings to Consider Retraction of Definition of Waters of the United States

Bilzin Sumberg Publication
Client Alert
August 23, 2021

In light of the Biden Administration's plans to reverse significant portions of the Navigable Waters Protection Rule, the Environmental Protection Agency and U.S. Army Corps of Engineers have announced a schedule of public meetings regarding their intent to revise the definition of "waters of the United States" (WOTUS) – the threshold term establishing the geographical scope of federal jurisdiction under the Clean Water Act. As we have discussed in prior posts, the likely result of any revisions to the current definition of WOTUS would broaden the scope of water bodies subject to federal regulation.

These initial meetings will be held as web conferences in August and September 2021, and are designed as "engagement opportunities" during which "stakeholders can share their perspectives on defining" WOTUS. In addition, the agencies are accepting initial written recommendations from the public until September 3, 2021. The agencies have established a link by which comments may be submitted; please note that all comments must reference Docket ID No. EPA-HQ-OW-2021-0328. 

The agencies have also indicated their intent to conduct ten "regionally focused and inclusive roundtables," during the fall and winter of 2021 and 2022, in order to "allow a full range of stakeholders to engage and discuss their experience with definitions of WOTUS."

Although it is not clear when formal rulemaking will begin after stakeholder feedback has been gathered, the agencies have announced that revisions to the definition of WOTUS will involve two separate rulemaking processes. The first will restore the regulations defining WOTUS that governed for decades, until 2015, and were updated to be consistent with relevant Supreme Court decisions. The second rulemaking process will "further refine and build upon that regulatory foundation;" thereby very likely broadening the scope of water bodies subject to federal regulation.

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