On June 9, the U.S. Environmental Protection Agency and Department of the Army announced their intent to revise the definition of “waters of the United States” that are federally regulated under the Clean Water Act and replace the definition under the Trump administration’s 2020 Navigable Waters Protection Rule, which provided four clear categories of waters under the CWA that businesses and landowners could easily understand.

According to an EPA news release, the NWPR was targeted in President Biden’s Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis.” That E.O. directed federal agencies to review all existing orders, guidance documents, policies and any other similar agency actions promulgated, issued or adopted during the previous administration. Following review of the NWPR, the agencies determined that the rule significantly reduces clean water protections.

As a result of the agencies’ findings, the U.S. Department of Justice is filing a motion requesting remand of the rule. The news release also states that DOJ’s action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to the Obama administration’s 2015 WOTUS final rule. It also anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era final rule and the NWPR.

Background

ABC has long been a vocal opponent of the Obama-era WOTUS final rule since it was first proposed in April 2014. ABC submitted comments on EPA and the U.S. Army Corps of Engineers’ proposals on step one and step two of the WOTUS rulemaking under President Trump. Additionally, ABC filed comments as a member of the Waters Advocacy Coalition.

Issued in April 2020, the NWPR replaced the 2015 WOTUS rule and clarified key elements related to the scope of CWA jurisdiction by identifying four clear categories of waters that are federally regulated under the CWA:

• Territorial seas and traditional navigable waters
• Perennial and intermittent tributaries
• Certain lakes, ponds and impoundments and
• Wetlands that are adjacent to jurisdictional waters.

ABC continues its commitment to work with the EPA and Corps and ensure the clearest possible regulations so that its members have the information needed to comply with the law while also serving as good stewards of the environment.