Back to the Future: EPA and Corps of Engineers Announce Intent to Restore Old Definition of WOTUS | Locke Lord LLP

On June 9, 2021, the US EPA and the US Army Corps of Engineers (collectively, the “Agencies”) jointly announced their intention to review and revise the definition of “United States Waters” (WOTUS). The definition of WOTUS and the resulting extent of federal jurisdiction under the Clean Water Act is one of the most controversial and frequently debated topics in environmental law. The result has been an almost constant ebb and flow within the scope of federal jurisdiction, as the definition is repeatedly challenged, interpreted and revised by different courts and jurisdictions. With this latest announcement, the Biden administration continues this cycle in search of the elusive definition that would be at the same time clear, defensible and sufficiently uncontroversial not to become the target of a future Republican administration.

Recent history

Since 2006, the definition of WOTUS has been interpreted in accordance with the “material connection” test established by Justice Kennedy in the 2006 Supreme Court case. Rapanos v. United States. The Obama administration undertook major regulations to strengthen and apparently clarify the definition, culminating in the Clean Water Rule of 2015. The Clean Water Rule significantly expanded the scope of federal jurisdiction, subjecting many waters and wetlands to to federal jurisdiction that had not previously been regulated. It also clouded the waters in many cases, as many waters and wetlands required site-specific jurisdictional determinations by the Corps of Engineers. Not surprisingly, the Clean Water Rule has been hailed by the environmental community and criticized as going too far by industry and conservatives. It has been challenged in numerous lawsuits and suspended by courts in several jurisdictions. The Clean Water Rule has become a primary target of the Trump administration, which promulgated its own rule redefining WOTUS in June 2020, the Navigable Waters Protection Rule (NWPR). The NWPR has provided the clearest, but also the narrowest, definition of WOTUS of any previous rule or interpretation. See our previous rapid studies (here and here) for more details and background on the NWPR and the Clean Water Rule.

New orientation of agencies

When President Biden took office, he quickly announced a review of key environmental rules promulgated by the Trump administration, including the NWPR. After completing this review, the agencies determined that the narrow scope of federal jurisdiction under the NWPR “results in significant environmental degradation.” For example, agencies noted that each of the more than 1,500 watercourses assessed in the states of Arizona and New Mexico were found to be non-jurisdictional, and more than 333 projects that would have required a license from the Section 404 of the Clean Water Act under the Clean Water Act. The rule no longer works under the NWPR. As a result, agencies plan to undertake new regulation to come up with a definition of WOTUS “informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Clean Water Rule. of the Obama era and the Trump-. Navigable waters protection rule of the era.

According to the agencies’ joint announcement, the new regulations will be guided by the following considerations:

  • Protect water resources and our communities in accordance with the Clean Water Act.
  • The latest science and the effects of climate change on our waters.
  • Focus on a rule with a practical implementation approach for state and tribal partners.
  • Reflecting the experience and feedback received from landowners, the farming community that powers and feeds the world, states, tribes, local governments, community organizations, environmental groups and disadvantaged communities with concerns about environmental justice.

Outlook for developers

It is clear that the new rule developed by the Biden administration will be more extensive than the NWPR. It’s not as clear whether this will be more or less expansive than the clean water rule. Given the success of many Clean Water Rule legal challenges, it’s reasonable to expect something more restricted, and the agencies have indicated in their announcement that they intend to “restore[] protections in place before the Clean Water Rule of 2015. ”But the Biden administration has not shied away from being bold on issues of climate and environmental justice, and WOTUS involves both, so an expansive rule is certainly a possibility.

The rule making process will likely take at least 2-3 years. In the meantime, the agencies have asked the court in an ongoing litigation challenging the NWPR to return the rule, but without a vacatur. This would leave the NWPR in place while the new rule is being developed, which would provide a window during which many waters and wetlands that do not meet the jurisdiction criteria under the NWPR could be legally met and developed.

Agencies are expected to provide more details on their rulemaking plans and processes in the coming weeks. Locke Lord’s environmental lawyers will be following this issue closely and are available to answer questions regarding WOTUS and the rule-making process in the interim.

About Edward Fries

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