The Environmental Protection Agency and the Army Corps of Engineers issued a supplemental notice of proposed rulemaking on Sept. 4, seeking additional public comment on the definition of “waters of the United States” under the Clean Water Act.
The WOTUS definition determines which bodies of water receive federal protection, affecting millions of acres of wetlands, streams and other water bodies across the country. The supplemental notice signals the agencies are building a stronger administrative record before finalizing one of environmental law’s most contested regulatory questions.
The WOTUS definition has been revised, litigated and revised again through multiple administrations, EPA said. The Supreme Court’s 2023 decision in Sackett v. EPA significantly narrowed the definition, and the current rulemaking is the first comprehensive revision since that ruling.
The agricultural sector, real estate developers and environmental groups all have deep stakes in the final definition. For farmers, a broad WOTUS definition can trigger permit requirements for routine field operations near ditches, streams or wet areas. For developers, it affects construction permitting timelines and costs.
For hundreds of millions of Americans who depend on clean downstream water, the WOTUS definition determines the scope of federal authority to regulate pollution and development activities that affect water quality.
The supplemental notice provides an additional comment opportunity beyond the original proposal, EPA said. The decision to seek more input suggests the agencies received significant new information or legal analysis that warrants public response.
Environmental organizations have argued that the Sackett decision left too many waterways unprotected, while agricultural and development interests have sought a narrower definition that limits federal permitting requirements.
The Clean Water Act prohibits discharging pollutants into “waters of the United States” without a permit. The definition of that phrase has been the subject of more than four decades of litigation, rulemaking and Supreme Court decisions.