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 should be issued 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'". If it is not challenged, the rule will become effective March 20, 2023, 60 days after publication in the Federal Register. 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."
See WOTUS Archive for more information.
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