On June 9, 2021, the Biden administration announced its intent to repeal and replace the Trump administration’s 2020 Navigable Waters Protection Rule, which defines which waterbodies constitute “waters of the United States” under the federal Clean Water Act, thereby triggering regulation. The Navigable Waters Protection Rule was a departure from prior iterations of the rule, most recently the broader Obama-era rule. In effect, it reduced the number and types of streams and wetlands regulated by the Clean Water Act, most notably the removal of ephemeral streams from regulation. In announcing the intended repeal of the Navigable Waters Protection Rule, U.S. Environmental Protection Agency (EPA) Administrator Michael Regan noted EPA’s determination that the rule had led to “significant environmental degradation.”
Also, on June 9, 2021, EPA and the Army Corps filed a motion for remand without vacatur in the U.S. District Court of Massachusetts, where litigation over the Trump-era rule is playing out, seeking to remand the rule to the agencies to revise or replace the rule. Notably, the motion seeks to have the Navigable Waters Protection Rule remain in place pending agency review. EPA has indicated its intent to draw on the experience of the pre-2015 rule, the Obama-era Clean Water Rule and the Trump-era Navigable Waters Protection Rule when initiating its new rulemaking process, and pledged its commitment to “meaningful stakeholder engagement” to ensure a proper balance between essential clean water protections and support for key economic sectors.