EPA and Army Seek to Rewrite WOTUS

WOTUS 150022095_s
Here we go again?
Jun 10, 2021

On Wednesday, the U.S. Environmental Protection Agency and the Department of the Army announced they are seeking to establish a new definition of “Waters of the United States.

The Department of Justice on behalf of the two agencies filed a motion on Wednesday requesting remand of the Navigable Waters Protection Rule (NWPR) in a Massachusetts District Court. The 2020 NWPR was put in place by the Trump Administration and replaced the 2015 Waters of the United States (WOTUS) Rule. Remand of the NWPR will not automatically restore the WOTUS rule.  Instead, the agencies will likely need to go through multiple rulemaking processes to repeal the NWPR; reinstate interim rules; and finally, to establish a new rule.   The motion filed in Massachusetts yesterday is just one of the jurisdictions considering cases so similar filings would need to take place in those courts to remand NWPR.

The Biden administration is pushing for greater Federal oversight over navigable waters, claiming the current rule is causing environmental destruction, even though states retain jurisdiction of waters no longer under Federal jurisdiction.

President Biden issued Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis” earlier this year which directed the agencies to review and, if warranted, take action to revise or replace the NWPR.

The EPA and Army Corps have outlined four goals in developing a new regulation: Protecting water resources and communities consistent with the Clean Water Act; using the latest science and the effects of climate change on waters; emphasizing a rule with a practical implementation approach for state and Tribal partners; and reflecting the experience of and input received from landowners, the agricultural community, states, Tribes, local governments, community organizations, environmental groups, and disadvantaged communities with environmental justice concerns.

“The actions of EPA and the Army to replace the NWPR are concerning to the U.S. rice industry,” said David Petter, Arkansas rice farmer and USA Rice Regulatory Affairs Chair. “The NWPR provided clarity and these actions will put farmers back into a regulatory limbo. We encourage the EPA and Army to work with the agriculture industry to ensure farmers are at the table as this process unfolds.”