The U.S. Environmental Protection Agency (EPA) and Department of the Army on June 9 announced their intent to once again revise the definition of Waters of the U.S. (WOTUS), the controversial regulatory framework for Clean Water Act (CWA) enforcement that has faced nearly constant legal challenges in recent years.
The agencies said the revisions are needed to better protect the country’s water resources after a “broad array of stakeholders” complained of destructive impacts to critical water bodies in the wake of the 2020 Navigable Water Protection Rule (NWPR), the Trump administration’s replacement rule that significantly scaled back the 2015 WOTUS definition drafted by the Obama-era EPA.
The NWPR was identified in President Biden’s Executive Order 13990, which directs federal agencies to review all existing regulations, orders, guidance documents, policies, and any other similar agency actions promulgated, issued, or adopted between January 20, 2017, and January 20, 2021. The U.S. Department of Justice on June 9 filed a motion requesting remand of the NWPR.
“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.”
Jaime A. Pinkham, Acting Assistant Secretary of the Army for Civil Works, said the NWPR has resulted in a 25 percent reduction in determinations of waters that would otherwise be afforded protection under the CWA. The lack of protections is particularly significant in arid states, the agencies said, where nearly every one of more than 1,500 streams assessed has been found to be non-jurisdictional. The agencies said they are also aware of 333 projects that would have required Section 404 permitting prior to the NWPR, but no longer do.
The agencies said they intend to initiate a new rulemaking process that builds upon the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era NWPR. High on the list of objectives is protecting water resources consistent with the CWA while also considering how water uses support key economic sectors; a practical implementation approach for state and tribal partners; and seeking input from landowners, the agricultural community, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
“Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and Tribal co-regulators, and is shaped by the lived experience of local communities,” Pinkham said.
Both The Fertilizer Institute (TFI) and the Agricultural Retailers Association (ARA) were strong supporters of the NWPR upon its publication last year (GM Jan. 24, 2020), and were highly critical of the 2015 rule. ARA President and CEO Daren Coppock issued a statement on June 9 defending the NWPR, and urging EPA and the Army to rely on science and common sense when considering any WOTUS changes.
Coppock said the statutory authority under the CWA originally applied only to navigable water, but that definition expanded over time, culminating with the 2015 rule which “grossly and inappropriately expanding the waters included under CWA jurisdiction.” He said the NWPR “utilizes a much more practical approach through a cooperative federalism system where the state agencies are co-equal regulatory partners with the EPA. This setup pulls back on mission creep and gives the states a more meaningful role in regulating their waters.”
Coppock said the NWPR also more closely follows Supreme Court precedent and the jurisdiction laid out in federal law by Congress, and removed a lot of uncertainty for landowners by more clearly defining inclusions and exclusions.
“I’m hopeful, based on Administrator Regan’s track record and statements, that science will rule the day as EPA reviews this rule, and that the agencies will seek to hear from all stakeholders, including property owners, and try to find practical solutions that are in the interest of all concerned and consistent with the enabling statute,” Coppock said.
All attempts to redefine WOTUS during the previous two administrations have been contentious. The 2015 rule was almost immediately challenged by 31 states and numerous stakeholders in multiple lawsuits, prompting the Sixth Circuit in October 2015 to issue a nationwide stay (GM Oct. 19, 2015). That stay was lifted in January 2017 when the U.S. Supreme Court determined that review of the rule falls within the jurisdiction of the district courts.
The Trump administration then tried to delay the 2015 rule’s compliance deadline while it worked on a new version (GM June 30, 2018), but those delays were challenged in court (GM Aug. 24, 2018). Subsequent decisions by a number of U.S. District Courts left a patchwork of enforcement, with the 2015 rule enjoined in 28 states and in effect for the remaining 22 states.
The Trump administration then announced in September of 2019 that it was repealing the 2015 rule (GM Sept. 13, 2019), with plans for EPA and the Army to recodify the “longstanding and familiar regulatory text” that existed prior to the 2015 rule, which they said would end the “regulatory patchwork” that has created uncertainty for CWA enforcement across the U.S. This effort produced the NWPR, which was heavily criticized by environmental groups who said it “effectively guts” the CWA (GM Sept. 24, 2020).