EPA and Army Intend to Revise WOTUS Definition

Wednesday, June 9, 2021, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced intentions to revise the definition of “waters of the United States” (WOTUS). The two agencies have determined that the Navigable Waters Protection Rule, published in the Federal Register on April 21, 2020 during the Trump administration is “significantly reducing clean water protections” especially in arid states.

The Biden administration plans to initiate rulemaking that would return water protection to pre-2015 WOTUS implementation. EPA and Department of the Army want to develop the new rules with “robust engagement” and insights from the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” said EPA Administrator Michael S. Regan. “We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities.”

The Hill has reported that EPA Administrator Michael Regan during a recent House hearing pledged not to return “verbatim” to the Obama-era regulation saying that both the Obama and Trump-era rules “did not necessarily listen to the will of the people.”

In a separate response to Sen. Lisa Murkowski (R-Alaska) at a Senate hearing, Regan said, “What I’m committed to is engaging with the secretary of [agriculture], with the Army Corps of Engineers, with the agriculture community and with the communities that are impacted in congress to best understand, how do we have a long-term, durable solution and not continue to have to ping-pong it back and forth.”

The Department of Justice filed a motion to remand without vacatur the current rule.

LINKS

The Navigable Waters Protection Rule: Definition of “Waters of the United States”
Federal Register • 85 FR 22250 • April 21, 2020

EPA, Army Announce Intent to Revise Definition of WOTUS
EPA News Release • Jun 9, 2021

Defendants’ Motion For Remand Without Vacatur
Case 1:20-cv-10820-DPW • Document 112 • Filed 06/09/21
Found on Agri-Pulse Website

EPA to revise Trump rollback to water pollution protections
by Rachel Frazin • The Hill • Jun 9, 2021