Dear USET/USET SPF Family,
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have adopted a Final Rule to revise the definition of Waters of the United States (WOTUS). This rule defines the scope of waters protected under the Clean Water Act and rescinds the 2020 Navigable Waters Protection Rule (NWPR), which the agencies determined was not a suitable alternative to this rule because it failed to advance the objectives of the Clean Water Act. The agencies determined that the 2020 NWPR's exclusion of major categories of waters from the protections of the Clean Water Act, specifically in the definitions of “tributary” and “adjacent wetlands”, ran counter to the scientific record demonstrating how such waters can affect the integrity of downstream waters. The agencies also stated that implementing the 2020 NWPR for over a year made clear that the foundational concepts underlying much of the 2020 NWPR were confusing and difficult to implement.
In the Final Rule the agencies also stated that, as evidenced by commenters, the issue of how to address “Tribal boundaries” for purposes of implementing the interstate waters provision is of great importance to Tribal Nations as well as various stakeholders. The agencies acknowledged that the range of views expressed on this issue—including support for interpreting Tribal boundaries to include all waters that flow across, or form a part of, Indian country boundaries—suggest finding that interstate waters include waters outside of Indian country that flow into areas where Tribal Nations exercise treaty or other rights. The agencies also acknowledged commenters who raised questions regarding implementation of potential interpretations of interstate waters as applied to Tribal boundaries. The agencies have considered the input received for the proposed rule and are continuing to evaluate the issue of interstate waters and Tribal boundaries. This includes what should appropriately be considered “Tribal boundaries” for purposes of identifying interstate waters under the Clean Water Act. The agencies plan to address this issue in a future rulemaking.
USET SPF submitted comments
to the EPA and USACE on this proposed rule on February 7, 2022. Our comments supported the rescission of the 2020 NWPR and urged the agencies to review the record of proceedings related to the Tribal provisions in the Clean Water Act. Although EPA and USACE held Tribal consultations on this proposed rule throughout 2021, the agencies only conducted public listening sessions in January 2022. Despite our recommendation to hold Tribal consultations on the proposed rule to revise the definition of WOTUS, the agencies did not host any consultations before finalizing the Final Rule. USET SPF will continue to monitor this proceeding, especially the future rulemaking the agencies plan to issue on defining “Tribal boundaries” as interstate waters.
For more information, please contact Brian Howard, Senior Policy Analyst, at bhoward@usetinc.org.
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