<p class="wp-block-paragraph">The Environmental Protection Agency (EPA) has opened another round of public comment on three key terms in a rule defining which bodies of water are subject to regulation, known as the “Waters of the United States” (WOTUS) rule, further extending the agency’s timeline for finalizing the rules.</p>
<p class="wp-block-paragraph">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.”</p>
<p class="wp-block-paragraph">“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 stated on a press call.</p>
<p class="wp-block-paragraph">The EPA last November proposed a revision to narrow the definition of WOTUS, which determines which streams, rivers, lakes, and wetlands fall under federal oversight. Various industries have expressed concerns that the EPA’s oversight has extended too far and hindered business and development.</p>
<p class="wp-block-paragraph">The agency has collaborated with the Army Corps of Engineers, which regulates bodies of water, to draft a rule that complies with the Supreme Court’s 2023 decision in Sackett v. EPA, which limited the scope of bodies of water subject to federal oversight.</p>
<p class="wp-block-paragraph">Kramer noted that the agency’s public comment period for the proposed rule ended in January, during which they received over 220,000 comments.</p>
<p class="wp-block-paragraph">“We evaluated those comments. We have given them a lot of thought. We’ve considered any questions that were provided, any additional insight, any recommendations, and we’re just not going to regulate in a black box,” Kramer said.</p>
<p class="wp-block-paragraph">“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 considering,” she added.</p>
<p class="wp-block-paragraph">The public comment period will be open for 30 days once it is published in the Federal Register.</p>
<p class="wp-block-paragraph">The WOTUS rule has experienced legal and regulatory changes for over 50 years. For example, the Obama administration broadened the scope of WOTUS, which faced opposition from industries and Republicans, who argued that it would grant the federal government excessive regulatory power over bodies of water. The Trump administration later narrowed the definition.</p>
<p class="wp-block-paragraph">Former President Joe Biden’s EPA proposed a WOTUS definition that included a “significant nexus” test to determine which wetlands or non-navigable waters are subject to federal protection.</p>
<p class="wp-block-paragraph">However, in Sackett v. EPA, the Supreme 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 expose millions of acres of wetlands to pollution.</p>
<p class="wp-block-paragraph">The Biden administration proposed a new rule to align with the Sackett decision, but the Trump EPA has contended that the Biden administration did not adhere to the Supreme Court’s ruling.</p>
<p class="wp-block-paragraph">Kramer stated that the agency will move as “expeditiously as possible” on implementing a final rule.</p>
<p class="wp-block-paragraph">“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 decades.”</p>