This letter to U.S. EPA and the Army Corps of Engineers’ (Corps) shares state comments on the proposed “Updated Definition of ‘Waters of the United States’” (WOTUS) rule. As co-regulators and key implementers of the Clean Water Act (CWA), states are eager for clarity on what constitutes federal jurisdictional waters, as changing jurisdictional scope can have a significant impact on many state-administered surface water, wetland, and watershed stewardship programs.
The comments address opportunities for additional clarity around the use of “wet season,” express state interest in learning if U.S. EPA and the Corps expect all aquatic resources to be mapped and included in a delineation report, asks that the agencies set an implementation date for a new rule that does not overburden states, and encourages the agencies to consider that although certain waters may no longer be jurisdictional under the federal CWA, consistent with the U.S. Supreme Court’s Sackett v. EPA decision, many of those waters and wetlands still play an incredibly valuable role in the environment, economy, and public health and safety of our states. It also acknowledges that the need for federal funding and support, under EPA, Corps of Engineers, Interior, USDA, NOAA, and other agencies for the goals of the CWA will endure. Additionally, the agencies should work with states to look for ways this rule and other policy mechanisms can further incentivize voluntary wetland stewardship, protection, restoration, and conservation, whether that is through providing improved tools for mapping, incentivizing mitigation banking, facilitating opportunities to bring in private sector funding, or other strategies.
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