The EPA’s new definition of Waters of the U.S. (WOTUS) takes effect Monday. It will be a key topic Wednesday when EPA Administrator Michael Regan appears before the Senate Environment and Public Works Committee.
Naysayers to the Biden WOTUS approach should take heart because as usual, EPA will take longer than most expect to implement it.
Biden’s EPA action would replace the Trump-era WOTUS rule with a new regulation that would expand federal protections for certain bodies of water.
The proposed rule was published in the Federal Register on Sept. 3, 2021, and is known as the “Definition of Waters of the United States” rule. Under the proposed rule, the following bodies of water would be considered WOTUS and therefore subject to federal regulation:
Traditional navigable waters
• Tributaries that contribute perennial or intermittent flow to such waters
• Certain ditches that meet specific criteria related to flow and function
• Certain lakes and ponds
• Impoundments of otherwise jurisdictional waters
• Wetlands that are adjacent to jurisdictional waters
The proposed rule also seeks to provide more clarity around which waters are not considered WOTUS and therefore not subject to federal regulation. For example, the rule would exclude certain types of ditches, ephemeral streams that only flow in response to precipitation, and groundwater.
The Biden administration has emphasized that the proposed rule is grounded in science and aims to protect public health, support communities and economies, and address climate change. However, the rule is likely to face legal challenges from industry groups and some states and as noted, the real “clarity” will come by June via the Supreme Court ruling.
Things to Consider in the WOTUS Rule
Don’t waste your time following congressional efforts to overturn the WOTUS rule under the Congressional Review Act (CRA).
Even though it passed the House, and even should it clear the Senate (by no means a certainty), President Joe Biden has already said he would veto it and the votes to override are lacking.