NGWA submitted comments on February 4 regarding a proposed rule of the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to redefine “waters of the United States” (WOTUS).
The definition of WOTUS articulates those waters that fall under federal jurisdiction vs. state jurisdiction. The new proposed rule would largely revert WOTUS back to the 2015 Obama-era definition, while also changing language that could expand federal authority over wetlands, tributaries, and impoundments.
Within its comments, NGWA reiterated its long-held stance that groundwater should largely remain managed by state and local governments and tribes:
“Because groundwater quality and supply issues vary dramatically across the United States, NGWA believes state and local authorities are best positioned to regulate and manage their groundwater supply.”
The EPA previously reevaluated the definition and rules governing WOTUS in 2015 under President Obama and again in 2019 under President Trump. NGWA submitted comments in September 2021 when the EPA announced it was going to reconsider the definition of WOTUS yet again.
NGWA’s comments posted on February 4 also urge the EPA and USACE to postpone any new rulemaking procedure until the decision is handed in the U.S. Supreme Court case, Sackett v. Environmental Protection Agency. The case centers around a dispute over how much wetlands not directly connected to WOTUS may impact that water through chemical or biological means, such as a connection through groundwater.
Depending on the high court’s decision, the case could drastically scale back the scope of WOTUS, or solidify its expansion and the jurisdiction of the Clean Water Act.
NGWA, along with other water associations, have argued since the case will have such far-reaching ramification to the definition of WOTUS, a new rule should be postponed until after a decision is handed down. The case is expected to be heard in the fall of 2022.
NGWA stated in its comments:
“Because a decision in Sackett v. EPA could fundamentally alter the regulatory landscape in the enforcement of the Clean Water Act, it could also impact major aspects of WOTUS. By postponing a new definition of WOTUS, the EPA would be working towards the creation of a more durable and long-lasting definition.”
Read NGWA’s submitted comments on the proposed rule to define WOTUS.