EPA and Army Corps Propose to Repeal and Replace Navigable Waters Protection Rule | Best Best & Krieger LLP

Legal brief asks court to overturn 2020 rule restricting the scope of the Clean Water Act

The United States Environmental Protection Agency and the Army Corps of Engineers announced his intention revise the scope of the federal Clean Water Act by changing the definition of “United States waters”. The move, announced yesterday, would overturn the Navigable Waters Protection Rule adopted under the Trump administration, which itself replaced a 2015 review by the Obama administration.

The timeline for launching the revisions is still unclear, but the Justice Department took a first step yesterday by filing a petition with the U.S. District Court in Massachusetts asking the court to return the rule from the Trump administration. to agencies for review. Currently, there are several lawsuits against the EPA over the Trump-era rule. The Ministry of Justice is likely to file similar requests in each of these cases. Significantly, the Biden administration did not ask the court to overturn the rule, meaning it is asking the court to leave the Trump-era rule in place for months or years to come for that agencies complete their rule-making processes.

The agencies’ announcement indicated that they initially intended to overthrow the Trump rule and restore the protections that were in place prior to the Obama administration’s 2015 Clean Water Rule. The Trump administration passed a definition that removed federal regulation of all ephemeral waterways and a significant portion of wetlands that agencies say were covered by the Clean Water Act for decades. Having restored pre-2015 protections, the Biden administration seems poised to forge its own course by developing its own definition, rather than simply trying to restore the broader standard of the 2015 rule. It is almost certain that the product end of this process will be challenged in court.

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