A New “Durable” (sic) Definition of Waters of the US

By John McFerrin

On Dec. 30, 2022, the United States Environmental Protection Agency (EPA) and the U.S. Army Corps of engineers announced a rule establishing a definition of “waters of the U.S.”

In announcing the rule, the agencies involved said,

“The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.”

The agencies described the rule as “final” and “durable.” To which longtime observers responded, “Final? Ha!” “Durable? Ha!”

The agencies are required to describe the rule as “final” because that indicates that this is the rule; when it takes effect in March 2023, this is the law. All rules are first published as drafts. Agencies then receive public comments, make revisions, etc. Describing a rule as final signals that this is it, this is what the law is.

For those who would benefit from a less expansive definition of “waters of the United States” and their lawyers, it is the equivalent of horse racing’s ringing the bell and shouting, “They’re off!” It’s time to head to the courthouse. In West Virginia, the constituencies for a less expansive definition include the mining companies who make a living filling streams.

Describing the rule as “durable” is wishful thinking. Disputes over the definition of “waters of the United States have gone on since the federal Clean Water Act was passed in 1972.  The Act protected the “waters of the United States” without defining what that phrase meant. We have been arguing about the definition ever since. The Obama administration did a careful review of the science and past court cases and came up with one rule. The Trump administration took the “I ran on getting rid of this rule, so we are getting rid of it” approach. Now the Biden administration has published a new final rule. 

The sprint to the courthouse has already begun. Industry groups in Texas have already filed a court challenge to the new rule. A coalition of Attorneys General from 24 Republican states (including West Virginia) have filed suit in North Dakota.

For a more complete history of the rule, see the January 2019 issue of The Highlands VoiceFor a more detailed discussion of the new rule, you could search “waters of the United States” or even WOTUS. There is such public interest in this rule that there are lots of sources of information. One helpful discussion can be found here