EPA’s WOTUS Definition Change Proposal “Strikes the Right Balance”

The Environmental Protection Agency’s recent proposal to revise the definition of “waters of the United States” strikes the right balance between the Clean Water Act’s dual mandates to protect and preserve as well as develop and use America’s waterways, the NAM told the agency Monday.

What’s going on: In November, EPA Administrator Lee Zeldin announced a new proposed rule that would revise the definition of WOTUS under the CWA, something the NAM has been working on for nearly 20 years.

If the proposed rule is finalized, it will reverse the previous administration’s definition, which both Zeldin and the NAM have said does not conform to the U.S. Supreme Court’s 2023 Sackett v. EPA ruling. That decision ensured that federal jurisdiction over American waterways and wetlands is appropriately limited—as intended by Congress.

Why it’s important: As the WOTUS definition has changed over the years, manufacturers have “been subject to increased red tape and uncertainty,” the NAM wrote.

That’s because “[m]any manufacturing facilities and projects that use manufactured goods have some connection to water features, meaning frequent and erroneous interpretive changes have made it difficult for manufacturers to effectively plan, invest and create jobs.”
Without a “durable” WOTUS definition on which to rely, “manufacturers run the risk of investing and constructing facilities under one regime, only to see regulatory and litigation risks abruptly change under a new definition.”

What else should be done: The NAM recommends that the EPA clarify certain concepts in the proposed rule, including those of “relatively permanent waters,” “wet season,” “tributary” and “continuous surface connection.”

It also urges the EPA to define certain exclusions, including those for waste treatment systems, stormwater and ditches.

The final word: “Manufacturers strongly support a return to certainty and predictability that reflects the appropriate balance between federal and state authorities, as Congress intended and the Supreme Court has reaffirmed,” said NAM Vice President of Domestic Policy Chris Phalen.