New WOTUS Definition Coming Soon: Army Corps of Engineers and EPA Announce Proposed Rule Defining Waters of the United States under the Clean Water Act

New WOTUS Definition Coming Soon:  Army Corps of Engineers and EPA Announce Proposed Rule Defining Waters of the United States under the Clean Water Act

We recently published a client alert summarizing a wide array of current and pending changes in federal natural resources agency regulations.  These changes reflect a strong pivot away from the Trump Administration’s regulatory re-write of key elements of the Clean Water Act, the Endangered Species Act, and other federal environmental statutes.

As we noted in that alert, earlier this year the United States Army Corps of Engineers and United States Environmental Protection Agency announced their intent to revise the definition of “Waters of the United States,” sometimes referred to simply as “WOTUS,” set forth in the Trump Administration’s Navigable Waters Protection Rule (NWPR). In late August, the NWPR was vacated by the Arizona District Court in the case Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. As a result, the Corps and EPA are now applying their 1986 regulations and prior guidance interpreting seminal court cases, such as the famous (or infamous) Rapanos decision, regarding the definition of WOTUS.

On November 18, 2021 the Corps and EPA announced a proposed rule that would largely revert to the WOTUS definition used by the agencies prior to 2015 when the Obama Administration adopted its more expansive WOTUS definition. According to the proposed rule, the new regulations will consist of the WOTUS definition found in the Corps and EPA’s 1986 regulations, with targeted amendments to those regulations reflecting the agencies’ interpretation of Supreme Court case law and statutory limits on the scope of WOTUS.

At the time of posting this client alert, notice of the proposed rulemaking had not yet been published in the Federal Register. The Corps and EPA anticipate holding virtual hearings on the proposed rule in January 2022. We will continue to provide updates on the rulemaking process as it moves forward.