ACRA Comments on New WOTUS Definition

ACRA has urged the Environmental Protection Agency (EPA) and the Army Corps of Engineers (USACE) to utilize the best available science and ensure robust consultation as they propose a new definition of “Waters of the United States” (WOTUS).

The two agencies proposed the new WOTUS definition last November, marking another chapter in a long-running debate over what bodies of water are regulated under the Clean Water Act (CWA). The proposed rule narrows the definition of WOTUS in line with the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, in which the Court held that the CWA extends only to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection.

Noting that the federal government must engage in a Section 106 consultative process before issuing a permit under Section 404 of the CWA, ACRA told the agencies that “any redefinition of the scope of waters covered under the CWA has the potential to affect the protection and preservation of irreplaceable historic properties by placing certain waters outside the CWA’s jurisdiction.”

ACRA urged the agencies to employ approaches to the definition of WOTUS that “utilize the best science, including, but not limited to, more extensive use of geographic information system (GIS) technology to define their extent and history.” ACRA also called on the agencies to ensure “robust consultation and engagement with communities, Tribes, and others who may have a relationship with the waters.”

ACRA also used its comments to point out that, although the Corps proposed in early 2024 to abandon its Appendix C regulations and instead follow the ACHP 800 rules for its Regulatory Program, it has yet to finalize the rule. According to ACRA, this leaves the Corps’ Section 106 compliance process “in a state of uncertainty, as it continues to utilize a set of regulations that most parties agree lead to confusion and inconsistency.”  ACRA pointed out that continued changes to the WOTUS definition only increased that uncertainty, “with the potential of delaying critical infrastructure projects and risking damage and destruction to historic properties.”

ACRA offered the agencies its assistance in ensuring that the regulations that govern compliance with the Section 106 process, including the WOTUS definition, “are developed and implemented using the best available science and provide clarity and certainty to the permitting process.”