In June 2021, the EPA announced that once the Trump-era Navigable Waters Protection Rule (NWPR) was vacated, the lengthy process of undoing the NWPR is soon to follow. The EPA stated that they intend to restore the pre-2015 regulatory scheme and formulate a new waters of the U.S. (WOTUS) rule shortly thereafter. Undoubtedly, this means that EPA considers that both Trump-era and Obama-era WOTUS rules are histories and has clear intention to impose CWA to use the 2008 “Rapanos Guidance”. The Rapanos Guidance was issued by the Bush Administration following the Supreme Court’s decision in Rapanos v. the United States, 547 U.S. 715; 126 S.Ct. 2208; 165 L.Ed.2d 159 (2006). On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army signed the proposed rule to revise the definition of “waters of the United States.” (1)
For many, this action seems premature. The nation found itself in a similar situation a few years ago, due to split decisions from federal judges over the Obama-era WOTUS rule. The impractical effect was more than obvious: 22 states were using the 2015 Obama rule, and 28 states were using the Rapanos Guidance. Regardless of whether the Arizona District Court ruling is overturned–or appealed, the practical application of the CWA will be confusing.
Intriguingly, the EPA issued a statement several days after the ruling, which is more debatable during a holiday weekend. Namely, Judge Marquez took the first arduous step by taking formal action to repeal the NWPR. In light of the Court’s opinion, “the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting ‘waters of the United States’ consistent with the pre-2015 regulatory regime until further notice.” (1). Another debatable topic is whether Arizona District Court has the authority to issue a nationwide repeal of the 2020 NWPR. This in particular needs to be considered since at least two other district courts have remanded the 2020 NWPR back to the EPA without vacating it.
While additional documents and funds will be required to obtain development permits and meet important scheduling milestones for developers, Florida entities will face a further dilemma. The procedure requires permitees to get a U.S. Army Corps 404 wetlands permit and pay for any required mitigation. This could lead to confusion during the identification process regarding which regulatory definition of WOTUS the EPA or the Corps should use. Thus prolonging the permitting process.
Once the proposed rule is signed, a formal rule adoption process follows. This process includes publication of the proposed rule in the Federal Register, solicitation of public comments which ended February 7, 2022, revisions (if there are significant comments received by stakeholders), and ultimately the final rule will be published in the Federal Register.
Once finalized by the federal agencies, this rule change has additional importance for Florida. The recently approved 404 Wetlands Program for the state of Florida allows up to twelve months to adopt changes in federal regulations. The specific case of NWPR in Florida may start as soon as the Spring of 2022. Such delegated federal programs entail further delays, and the inevitable litigation that most likely will follow may detain the effectiveness of the Rapanos Rule.
Clients in Florida, who already have a Florida 404 permit or plan to obtain one, are highly advised to start with the process of authorizing activities.
(1) https://www.epa.gov/wotus/current-implementation-waters-united-states