Yesterday, the U.S. EPA and the U.S. Army Corps of Engineers announced their intent to initiate a rulemaking process to promulgate a new definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). This move was widely anticipated, given that the Trump Administration’s rulemaking efforts on WOTUS – specifically, the Navigable Waters Protection Rule (“NWPR”), issued by the EPA and the Corps in January 2020 – significantly pared back the definition of WOTUS, removing some 60% of previously regulated waters from the agencies’ CWA jurisdiction. The NWPR replaced the 2015 Clean Water Rule, which had established an expansive definition of WOTUS. Although the NWPR is currently the subject of numerous pending legal challenges, it is the law of the land in all 50 states.
The agencies have filed a motion in the pending NWPR litigation requesting that the court remand the current rule back to EPA in light of the proposed rulemaking. If this motion is granted as proposed, the NWPR would remain in effect until the agencies promulgate a revised final rule.
At this point, all we can say for sure is that there is likely to be litigation challenging the agencies’ motion, and any subsequent decision made by the court. It is difficult to predict the timeline or what the courts may do with this, but there is a risk that projects may get caught in the middle of this change in definition.
Practically speaking, the agencies’ announcement throws uncertainty into pending permit applications and No-Permit-Required requests. Foley environmental attorneys are well-positioned to assist with WOTUS issues in this time of significant regulatory uncertainty.