Advocacy
Congress has passed H.R. 3684, which was signed into law by President Biden on November 15, 2021. SESWA had adopted a White Paper on Stormwater Infrastructure Funding supporting increased federal funding and greater flexibility in stormwater and related programs. H.R. 3684 contains numerous provisions on stormwater, resiliency and water quality, See SESWA's summary here.
Waters of the United States (WOTUS) - Events are listed below in chronological order below.
WOTUS Rules Proposed
Waterbodies that are subject to federal jurisdiction are termed Waters of the US or “WOTUS.” Such waters are subject to the provisions of the Clean Water Act and NPDES permitting programs, dredge and fill regulations, endangered species policies, etc. WOTUS policy has been subject to wide fluctuations over the past 20+ years, due in part to highly variable court decisions and also policy changes from one administration to another. Attempts to clarify WOTUS policy were initiated with the adoption of revised regulations in 2015. View SESWA's 2015 White Paper. Litigation occurred throughout the country on those regulations when a new (and very different) set of regulations were adopted in 2020. After litigation over those regulations were underway, a final rule to establish the definition of WOTUS was published in early 2023.
On December 7, 2021 EPA and the Army Corps of Engineers proposed a new rule to again revise the scope of Waters of the US. The Agencies stated that the newly proposed regulations reflected a policy that is somewhere in between the expansive set of definitions adopted in 2015 and the greatly narrowed definitions that were adopted in 2020. More information may be found at EPA's WOTUS webpage. Comments can be found on the federal eRulemaking Portal at www.regulations.gov. See SESWA’s comments here. The proposed rule was sent to the Office of Management and Budget (OMB) in September. OMB review is the last step in the rule adoption process and typically takes around 90 days.
Meanwhile, on October 3, 2022 the US Supreme Court heard oral arguments for an appeal of a case seeking to clarify its 2006 ruling in Rapanos. Sackett v. EPA asks SCOTUS when the CWA applies or does not apply to wetlands. A decision is expected in 2023.
On January 18, 2023 EPA and the Army Corps of Engineers released a final Revised Definition of Waters of 'Waters of the United States'". and took effect on March 20, 2023. The Rule is generally based on the pre-2015 definitions and appears to be a middle ground between the 2015 “Clean Water Rule” and the 2020 “Navigable Waters Protection Rule.” While the Rule seems to have a narrower application than that of the 2015 regulations, it does contain language for “significant nexus” and “relatively permanent” tests, which will be subject to interpretation by regulators. Waterbodies that meet either test will be jurisdictional and subject to EPA and Corps permitting requirements.
On March 19, 2023 ruling in the State of Texas, et al. vs. EPA, et al., a federal judge blocked implementation of the Rule in two states (Texas and Idaho). EPA subsequently announced that "the Rule is operative in all jurisdictions of the United States except Idaho and Texas."
On April 12, 2023 the U.S. District Court for the Eastern District of North Dakota granted a request from 24 state officials to block the implementation of the rule from being implemented in those states. Of the 24 states the following Southeast states include Alabama, Georgia, Florida, Mississippi, South Carolina, and Tennessee. There are now a total 26 states where the rule has been enjoined and are subject to the pre-2015 regulatory regime.
On May 10, 2023, a decision by the U.S. Court of Appeals for the 6th Circuit granted approval for Kentucky to block the implementation of the most recent WOTUS rule. With this ruling, Kentucky becomes the 27th state to block the implementation of the new WOTUS rule, going back to the pre-2015 version.
On May 25, 2023, U.S. Supreme Court established a more stringent test to determine whether the Clean Water Act (CWA) applies to a wetland. The long-standing Sackett v. EPA case has been under review for over 10 years. The Supreme Court decision ruled that EPA had overstepped its authority in determining wetlands on the Sackett property and requiring remediation of construction impacts. The decision greatly limits EPA's authority on determining wetlands and requiring CWA permitting actions and could lead to significant changes to states implementation of wetlands permitting and 404 programs.
On August 29, 2023, EPA and the Army Corps of Engineers issued a "good cause" final rule narrowing the definition of WOTUS to align with the Supreme Court's decision in Sackett v. EPA, which eliminates the "significant nexus" test for determining whether any waters are jurisdictional while also excluding "adjacent" wetlands and "interstate wetlands" from the definition of jurisdiction waters. View the pre-publication version of the rule and EPA's Fact Sheet to learn more.
On September 8, 2023, the final "Revised Definition of Waters or the United States'; Conforming," became effective after publication in the Federal Register.
See WOTUS Archive for more information.
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