The National Association of Counties is urging its members across the country to mobilize against a constantly-changing definition of the waters of the U.S., or WOTUS.
The most important factor is “regulatory certainty,” Adam Pugh, associate legislative director for the association, said Wednesday during a webinar about WOTUS changes.
“Knowing that you can begin a project—and knowing you won’t have to change it in four or eight years depending on the result of the presidential election—is key,” he said.
The Clean Water Act leaves it to the Environmental Protection Agency and the U.S. Army Corps of Engineers to define WOTUS. Like a swinging pendulum, each administration has re-defined federal waters since the George W. Bush administration set its definition in 2008.
The Obama administration expanded the waters under federal jurisdiction in 2015, but the Trump administration issued its own rule in 2020, slashing protections for ephemeral streams and other wetlands. The George W. Bush-era definition is now back in force following an Aug. 30 ruling from an Arizona federal district court that tossed out the Trump-era Navigable Waters Protection Rule.
The Biden administration is now taking steps to write its own WOTUS definition.
‘In the Middle’
Pugh said NACO expects the Biden administration’s WOTUS definition to fall “in the middle” between the Obama and Trump rules, protecting more waters than the Trump rules, but fewer than Obama’s.
He urged counties to tell the EPA and Army Corps about concerns that the new WOTUS rule will overreach by putting ditches and other ephemeral water bodies under federal control.
“I hope they don’t consider rainfall as protected at the federal level,” Pugh said.
The ruling in Pasqua Yaqui Tribe v. EPA is already changing how the Army Corps determines what wetlands fall under federal jurisdiction.
Following the decision, the Army Corps resumed issuing formal determinations of federal waters jurisdiction under the pre-2015 rule on Sept. 3 and had processed 44 of them by Sept. 14, spokesman Doug Garman said.
The agency hasn’t analyzed the 44 determinations to know how they would have turned out differently under the just-scrapped Trump-era rule, Garman said.
However, all determinations issued under the Trump-era rule prior to Sept. 3 remain in effect, he said.