“ALL OVER AGAIN”
EPA and Army Announce Intent to Revise WOTUS Rule
By Jim Bradbury & Courtney Smith
James D. Bradbury, PLLC
The Biden Administration Environmental Protection Agency (EPA) and Department of the Army on June 9 announced their intent to revise the definition of “waters of the United States” (WOTUS). The agencies cited “a broad array of stakeholders” from states to scientists to non-governmental organizations that are reporting destructive impacts to important water bodies under the Trump-era 2020 Rule.
President Joe Biden previously ordered the agencies to review the 2020 Navigable Waters Protection Rule to determine whether it should be revised. After conducting this review, the agencies concluded that the 2020 Rule was leading to “significant environmental degradation.” They specifically pointed to a 25% reduction in determinations of jurisdictional waters under the 2020 Rule that would otherwise have been protected. The reduced protections are particularly notable in more arid climates, such as New Mexico and Arizona, where they explained “nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional.”
In their announcement, the agencies pointed to several goals to be achieved under the revised WOTUS definition, including supporting public health, environmental protection, agricultural activity and economic growth. As a result of the announcement, the Department of Justice filed a Motion for Remand of the WOTUS rule. The intent is to restore the protections in place prior to the 2015 WOTUS rule and develop a new rule that defines WOTUS, informed by a robust process and learning from the experience of implementing the prior versions of the rule.
Citing a commitment to meaningful stakeholder engagement, the agencies outlined four considerations that will guide their rulemaking: 1) protecting water and communities; 2) current science and impacts of climate change on waters; 3) practical implementation for state and Tribal partners; and 4) looking to the experience and input of stakeholders, including landowners, agricultural community, states, Tribes, local governments, environmental groups, community organizations, and communities with environmental justice concerns.
It is certain that the new rule will be different from the Trump-era Navigable Waters Protection Rule. The extent to which it mirrors the Obama-era Clean Water Rule remains to be seen. At this point the EPA has stated that it will not return to the Obama WOTUS approach, but it appears that much of the clarity that was attained in the Trump administration will be lost. In any event, it will be a matter that should be closely followed by landowners and agricultural operators and groups.