On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army announced the signing of a proposed rule. On December 7, 2021, the proposed rule was published in the Federal Register. Until February 7, 2022, the comment period is open. This proposal is a breakthrough after announcing the regulatory process in June 2021.
After EPA signed a proposed rule to scrap the Trump-era rule Navigable Waters Protection Rule (NWPR), authorities appointed the restrictive pre-2015 regulations until they developed a newly revised WOTUS rule. The agencies intend to put back into place the pre-2015 definition of “waters of the United States,” which will be updated in order to reflect consideration of Supreme Court decisions. In comprehensive consultations with states, tribes, local governments, and a broad array of stakeholders, the agencies work in the current implementation and future plan of action regarding the regulation of the WOTUS definition and to establish the geographic scope of federal jurisdiction.
Background
In 2019, the Trump administration repealed the 2015 Waters of the United States (WOTUS) and, in June 2020, replaced it with the new NWPR. The NWPR substantially narrowed the definition of WOTUS that were subject to federal authority under the Clean Water Act. The Trump -rule was the subject of many legal discussions. Soon after the Biden administration took the lead, several federal court rulings vacated the Trump-era rule. On June 9, 2021, the Agencies announced their intention to propose a new WOTUS regulatory definition by following the critical two-step federal rulemaking process.
The WOTUS definition has undergone many changes over the years. This recent action to scrap the NMPR is the next step towards solidifying the rules that will bring stable implementation of WOTUS. EPA Administrator Michael S. Regan stated: “In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America. Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”
“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation. We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham.
Earlier this year, at the House Appropriations Committee hearing, Regan said: “We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim and we don’t necessarily agree with everything that was in the Trump administration’s version as well. We’ve learned lessons from both, we’ve seen complexities in both and we’ve determined that both rules did not necessarily listen to the will of the people.”
EPA officials gained experience and learned many lessons from both versions of the rule over the years. Both approaches have their complexities, and the final conclusion is that both rules did not automatically favor the regulated community and public interests. According to environmentalists, more stringent water regulations are necessary since the Trump administration’s rule allowed smaller bodies of water that flow into larger water sources and thus contaminate the entire water flow. On the other hand, farmers rated the Obama-era rule as too burdensome and overreaching.
Wherever politics is represented, there are two directions and two, in most cases, opposite views on the same topic. As with the EPA’s action decision, both parties expressed their opinion on the WOTUS rule. On the one side, Republicans warn that the rule would frustrate infrastructure. On the other side, Democrats state that the proposed rule paves a way to develop a definition that will provide reliability. Additionally, Democrats believe the new rule will protect nations’ waters and wetlands and, at the same time, will support the economy, public health, environment, agricultural activity and will offer the development of industries that depend on clean water.
Will there be a completely new WOTUS rule soon?
It remains unclear when EPA will release the new definition for “water of the U.S.” and which wetlands and streams the rule will protect. The predictions are that the new WOTUS rule will be closely related to the 2015 Obama WOTUS rule, unlike the 2020 Trump WOTUS rule. The comprehensive pre-proposal engagement performed by the EPA and the Army is helpful regarding the content of the proposed rule. For that purpose, Federalism and Tribal consultation contributed to the consultation.