USA! USA! The wait is over for Team USA, just beginning for “waters of the USA”

Date Posted: 07/26/2021

Waters of the United StatesA year of building anticipation comes to an end this week as the 2020 Summer Olympics finally gets underway. Sports fans tune-in to cheer on Team USA while a similar anticipation is just beginning for those watching for changes to the “waters of the United States.” It has been nearly two months since EPA and Army Corps of Engineers announced the intent to redefine the term “waters of the United States,” commonly referred to as WOTUS. Like the Olympic Games postponement, this rulemaking looks as though it will be a lengthy wait. In the meantime, like the athletes that kept training during the delay, there are steps to take now that will better position your operations when the Agencies do begin rulemaking.  

First, understand why this definition is important and what the change may mean for your company. Many Clean Water Act (CWA) programs apply only to WOTUS, so broadening the definition changes how and where those programs apply.  For example, waterbodies that did not meet the 2020 WOTUS definition may be included in the future. Operations that discharge into these bodies of water would then be subject to NPDES or Dredge and Fill permitting that they were exempt from before.

Second, study up on historic updates to the WOTUS definition to get an idea of what could be forthcoming. Most indications point to a definition that will more closely mirror the 2015 version or the rule and will likely undo many of the exemptions implemented in the 2020 rulemaking. Familiarizing yourself with these differences may give a clue into what will and will not be included in the reissued definition.

Last, stay informed on the rulemaking activity, when it gets going, and be engaged when public participation is open − attend workshops and listening sessions, submit comments during comment periods, etc.

 

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