Upon taking office, President Biden issued an Executive Order (EO 13990) directing federal agencies to review certain regulatory actions taken under the prior administration. That review included the Trump-era Navigable Waters Protection Rule (NWPR). That rule defines the term "waters of the United States" under the Clean Water Act, thereby delineating the scope of federal jurisdiction over wetlands and waterways under the Act.
Last week, the U.S. Environmental Protection Agency and Army Corps of Engineers asked a federal court to remand the NWPR to the agencies without vacatur. While EPA's press release expressly mentions "restor[ing] the protections in place prior to the 2015 WOTUS implementation," EPA and the Corps' pleadings contemplate implementation of the NWPR until further rulemaking action is completed. In other words, stay tuned...
At this point, we know little about how the agencies will ultimately revise the WOTUS definition, but it's safe to say that the agencies will propose expanding federal jurisdiction under the Act. In their announcement and papers filed with the court, the agencies specifically highlighted concerns with (among other things) the NWPR's effect on federal jurisdiction in arid western states and its exclusion of ephemeral waters and "certain wetlands." The agencies also indicated an intent to consider climate change and environmental justice as part of their rulemaking process.
Upon review of the Navigable Waters Protection Rule, the agencies have determined that the rule is significantly reducing clean water protections. The lack of protections is particularly significant in arid states, like New Mexico and Arizona, where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do. As a result of these findings, today, the Department of Justice is filing a motion requesting remand of the rule. Today’s action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule that defines WOTUS and is informed by a robust engagement process as well as the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.