NGWA submitted comments to the U.S. Environmental Protection Agency on April 23 regarding perspectives on defining “waters of the United States.
EPA Administrator Lee Zeldin announced on March 13 that the EPA would be working with the U.S. Army Corps of Engineers to review and revise the definition of “waters of the United States (WOTUS)” and how to implement such a definition as the agency seeks to be consistent with the 2023 U.S. Supreme Court decision in Sackett v. Environmental Protection Agency.
Zeldin said the agencies will make sure the revised definition follows the law, reduce red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation’s navigable waters from pollution.
In NGWA’s comments, the Association stated:
“NGWA believes that “groundwater, including groundwater drained through subsurface drainage systems, should not be included in the definition of ‘waters of the United States’ and should continue to be regulated and managed by states. Clarification of federal and state jurisdiction is important to commerce and decisions involving economic and environmental tradeoffs.”
NGWA’s comments also provide detail regarding exclusion of wetlands, wastewater recycling structures, surface expression of groundwater, artificially irrigated areas, and stormwater control.
The U.S. Supreme Court heard the case concerning WOTUS in May 2023, eventually ruling in favor of Chantell and Michael Sackett in their case against the EPA. It ruled that to be categorized as WOTUS, bodies of water must have a direct physical connection and appear almost as one continuous body of water.
The case originated after the Sacketts began building a new home in Idaho and placed a large quantity of sand and gravel on their empty plot of land. The EPA soon notified the Sacketts that their property contained protected wetlands that qualify as “navigable waters” or “waters of the United States” under the Clean Water Act and that all construction must stop.
The Sacketts argued there was no direct connection between their property and the federally protected waters, and that the EPA had no jurisdiction over their property. The case has been working its way through the court system since 2012 before finally arriving at the Supreme Court.
In February 2022, NGWA sent comments to the EPA urging it to postpone any additional work on drafting a new WOTUS rule until the Sackett case was decided. The EPA did not accept the recommendation and published a new rule earlier that year.
The EPA previously reevaluated the definition and rules governing WOTUS in 2015 and again in 2019.
Click here to read NGWA’s complete comments on WOTUS.