On July 29, 2021, the Environmental Protection Agency (EPA) and U.S. Department of the Army (Civil Works) initiated a federalism consultation for a rulemaking that restores the WOTUS regulations in place prior to the 2015 Clean Water Rule. On August 13, at the request of several intergovernmental organizations, the agencies extended the comment period to October 4, 2021. The letter said: “Consulting with state and local government officials, directly and through their representative national organizations, is an important step in the process prior to proposing regulations that may have federalism implications under the terms of Executive Order 13132, titled Federalism (64 Fed. Reg. 43255, August 10, 1999). We look forward to hearing and receiving the input and advice of our intergovernmental partners as we develop the forthcoming rules to establish a durable, protective, and workable definition of “waters of the United States.”
On October 4, the WSWC sent a letter to the EPA and Army (Civil Works) expressing the need for more robust and ongoing consultation with states on the development of a new rule defining the jurisdictional scope of “waters of the United States.”
The letter said: “The WSWC urges the agencies to provide opportunities for a representative number of states across different regions with diverse perspectives to actively engage in the rule development process with the agencies, to provide direct and effective feedback on the implementability of concepts or language that might be considered in a proposed rule. A one-size-fits-all national approach does not recognize specific conditions and needs in the West, where water can be scarce and a variety of unique waterbodies exist. A rule that is more regional in nature, or that allows flexibility in implementation, appears more appropriate. As co-regulators, the states would like to work together with the agencies to develop and implement a rule that seeks to strike a balance between the critical importance of protecting the quality of the nation’s waters and preserving the sovereignty of states over their land and water resources.”
The letter also noted the importance of (1) ongoing technical and financial assistance to states under existing programs “to address point and non-point source pollution through state regulatory and voluntary programs tailored to fit unique state needs”; (2) joint federal-state efforts to develop geospatial datasets for mapping jurisdictional waters, including the identification of the most up-to-date data and tools, as well as funding for field verification of map accuracy and ongoing map maintenance; (3) involving states in the rulemaking process to help end regulatory whiplash; and (4) establishing a clear process for resolving differences of opinion over federal and non-federal jurisdiction, as well as jurisdictional disputes between different states and tribes.