The Environmental Protection Agency has opened another round of public comment on three key terms in a rule defining which bodies of water are subject to regulation, also known as the “Waters of the United States,” or WOTUS, rule, further lengthening the agency’s timeline for finalizing the rules.
The EPA and the Army Corps of Engineers announced on Friday that they would issue a supplemental notice seeking public input on additional options for defining “relatively permanent” and “continuous surface,” and including a new proposed definition for “perennial.”
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“The supplemental proposal is designed to help the agencies consider a wide range of additional options as we work toward developing a final rule that updates the definition of WOTUS,” EPA Assistant Administrator for Water Jess Kramer said Thursday on a press call.
The EPA last November proposed a revision to narrow the definition of WOTUS, which is a regulation that determines which streams, rivers, lakes, and wetlands fall under federal oversight. Members of various industries have complained over the years that the EPA’s oversight has extended too far and stymied business and development.
The agency has worked with the Army Corps of Engineers, which regulates bodies of water, to write a rule that complies with the Supreme Court’s 2023 decision in Sackett v. EPA, which reduced the scope of bodies of water subject to federal oversight.
Kramer noted that the agency’s public comment for the proposed rule ended in January, and they received over 220,000 comments.
“We evaluated those comments. We have given them a lot of thought. We’ve given a lot of thought to any questions that were provided, any additional insight, any recommendations, and we’re just not going to regulate in a black box,” Kramer said.
“This administration is not going to put out a final rule without evaluating all of the options and ensuring that we give the stakeholder community an opportunity to comment on all of the proposed options that we’re thinking about,” she added.
The public comment period will be open for 30 days once it is published in the Federal Register.
The WOTUS rule has been subject to legal and regulatory pendulum swings for more than 50 years.
For instance, the Obama administration broadened the scope of WOTUS, which prompted opposition from industries and Republicans, arguing that it would effectively provide the federal government with unlimited power to regulate bodies of water. The first Trump administration later narrowed the definition.
Former President Joe Biden’s EPA put forward a WOTUS definition that included a “significant nexus” test to determine which wetlands or non-navigable waters are subject to federal protection.
However, in Sackett v. EPA, the high court ruled that WOTUS was limited to wetlands that directly adjoin rivers, lakes, and other navigable bodies of water, rejecting the “significant nexus” test. Environmentalists have opposed the decision, arguing it would open millions of acres of wetlands to pollution.
The Biden administration proposed a new rule to align with the Sackett decision, but the Trump EPA has argued that the Biden administration failed to follow the Supreme Court’s ruling.
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Kramer said the agency will move as “expeditiously as possible” on imposing a final rule.
“What’s most important to us right now is getting those public comments in and ensuring that we take the time that we need to get this right,” Kramer said. “We would like to be the administration that ends the … whiplash that the regulated community has been in for for decades.”
