Audit, Compliance and Risk Blog

On September 8, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States” (WOTUS) which is a critical but undefined term in the Clean Water Act (CWA). As I’ve discussed repeatedly, the agencies, potentially regulated entities, and others have disputed possible definitions for decades. Most recently, in May 2023 the US Supreme Court adjusted its own precedent to over-rule definitions adopted by EPA and the Corps in January 2023 (I discussed the January rules HERE, and the Supreme Court decision (Sackett v. EPA) HERE). The rest of this note identifies the newest regulatory (re)definitions, adopted to conform the agencies’ regulations to the latest Supreme Court guidance restricting the types of wetlands potentially considered to be WOTUS subject to CWA regulation.

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On January 18, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States.” The Clean Water Act (CWA) empowers federal agencies to regulate activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by EPA and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the Corps. The remainder of this note offers a brief summary of the last 20 years of judicial reinterpretations and regulatory responses, and discusses the latest revisions.

 

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On November 22, the US Environmental Protection Agency (EPA) announced the success of its ongoing National Compliance Initiative for “Reducing Significant Non-Compliance (SNC) with NPDES Permits,” addressing high levels of non-compliance with individual permits to discharge water pollutants under the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination system (NPDES). EPA started the Initiative in fiscal year (FY) 2018, in cooperation with delegated state water quality agencies, after compiling and evaluating permit holders’ data showing significant non-compliance by over 20% of the 46,000 permitted facilities around the country. The Initiative’s goal has been to cut non-compliance in half by the end of FY 2022. EPA’s November 22 report claims that this goal has been exceeded, with significant non-compliance rates down to 9%.

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