EPA and Army Corps to Propose Repealing and Replacing the Navigable Waters Protection Rule

Best Best & Krieger LLP

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Legal Filing Asks Court to Remand 2020 Rule Narrowing Scope of Clean Water Act

The U.S. Environmental Protection Agency and Army Corps of Engineers announced their intent to revise the reach of the federal Clean Water Act by changing the definition of “waters of the United States.” This move, announced yesterday, would reverse the Navigable Waters Protection Rule adopted during the Trump administration, which itself replaced a 2015 revision by the Obama administration.

The timeline for initiating the revisions is still not clear, but the Department of Justice did take a first step yesterday by filing a motion in the U.S. District Court of Massachusetts asking the court to return the Trump administration rule to the agencies for revision. Currently, there are several lawsuits against the EPA over the Trump-era rule. The Justice Department is likely to file similar motions in each of those cases. Significantly, the Biden administration did not ask the court to vacate the rule, meaning it is asking the court to leave the Trump-era rule in place for the coming months or years while the agencies complete their rulemaking processes.

The agencies’ announcement indicated that they intend to first reverse the Trump rule and restore the protections that were in place before the Obama administration’s 2015 Clean Water Rule. The Trump administration adopted a definition that removed federal regulation of all ephemeral streams and a significant portion of wetlands that the agencies had said were covered by the Clean Water Act for decades. After restoring pre-2015 protections, the Biden administration appears ready to chart its own course in developing its own definition, rather than simply trying to restore the 2015 Rule’s broader standard. The final product of this process is almost certain to face court challenges.

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