Redefinition Proposal for Waters of the US within Federalism Discussion
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) embarked on a joint federalism consultation process to revise the definition of "waters of the United States" (WOTUS) under the Clean Water Act (CWA) in June 2021. The goal was to better protect water resources, as announced by the EPA and the Department of the Army on June 9, 2021.
Throughout this process, the agencies considered state and tribal interests, analysing the rule under Executive Order 13132 (Federalism) and Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments). However, the specific outcomes of federalism consultation meetings and the detailed summaries of letters submitted by states, tribes, and other entities are not publicly reported in available sources.
Despite this, a total of thirty-eight letters were submitted as part of the federalism consultation process, coming from various entities including state government agencies, local government agencies, intergovernmental associations, and state-level associations of local governments. Notable submissions included those from Indiana Department of Environmental Management, Minnesota Rural Counties, Santa Fe County, NM, Alaska Department of Environmental Conservation, Cowlitz County, WA, Association of Minnesota Counties, Hawai'i County, HI, Tennessee Municipal League, Nevada Division of Environmental Protection, Lincoln County, NV, Oklahoma, Oregon Department of Environmental Quality, Kansas Department of Health and Environment, South Dakota, New Mexico Environment Department, Wyoming Department of Environmental Quality, Clearwater County, MN, Maryland Department of the Environment, Arizona Department of Environmental Quality, County Commissioners Association of Pennsylvania, and Michigan Department of Environment, Great Lakes and Energy.
The consultation process concluded that the rule is consistent with federalism principles and does not have substantial direct effects on states or Indian tribes that would trigger additional tribal consultation requirements. However, the agencies did engage in consultations with state and local government officials due to the strong interest and potential effects associated with a change in the WOTUS definition.
The process culminated in the publication of the "Revised Definition of 'Waters of the United States'" rule on December 30, 2022, followed by the "Revised Definition of 'Waters of the United States'; Conforming" rule on August 29, 2023, which conforms the definition to the U.S. Supreme Court’s decision in the case of Sackett v. EPA. The conforming rule became effective on September 8, 2023.
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