On June 9, 2021, in a move that came as a surprise only for its delay in being announced and not at all in the substance of the announcement itself, the EPA and US Army Corps of Engineers (Corps) announced their intent to revise the definition of “waters of the United States” (WOTUS). More particularly, EPA and the Corps moved to remand the Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22,250 (Apr. 21, 2020) (NWPR) via a motion to remand the rule filed by the US Department of Justice in a matter pending in the United States District Court for the District of Massachusetts. Conservation Law Foundation v. EPA, Case No. 20-cv-10820-DPW.
In their motion to remand, the Agencies advised the court that they had completed their review of the NWPR and decided to commence a new rulemaking to revise or replace the rule. By remanding the pending litigation, the Agencies advised the court that unnecessary litigation might be avoided and would best serve the interest of judicial economy. The Agencies advised that they had identified numerous concerns with the NWPR, many of which had been raised by plaintiffs and intended to evaluate those concerns via a new notice and comment rulemaking. In their press release, the Agencies announced that they had determined that the NWPR was significantly reducing clean water protections. Further, the Agencies noted that the lack of protections was particularly significant in arid states like New Mexico and Arizona where, according to the announcement, every one of over 1500 streams assessed had been found to be non-jurisdictional.
According to the press release, the new regulatory effort will be guided by the following considerations:
- Protecting water resources consistent with the Clean Water Act;
- The latest science and effects of climate change;
- Emphasizing a rule with a practical implementation approach for state and tribal partners; and
- Reflecting the experience and input from landowners, the agricultural community, states, tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.
This move is consistent with President Biden’s Executive Order 13990 which directed federal agencies to review all existing regulations, orders, guidance documents policies, and other similar agency actions taken during the Trump administration.
And so, the political ping-pong of what may be regulated as WOTUS continues with the current trend geared toward more, not less, regulation.