The Biden administration plans to revise the definition of “waters of the United States” under the Clean Water Act after concluding the Trump administration’s Navigable Waters Protection Rule is causing “significant environmental degradation,” according to EPA Administrator Michael Regan.
The Justice Department filed a motion Wednesday in a case in Massachusetts requesting remand of the rule without vacating it. The move sets in motion a process to replace the Trump-era rule, something EPA Administrator Michael Regan said was on the agenda earlier this year. The EPA and Army Corps of Engineers issued a joint statement Wednesday officially announcing the plan to reconsider the existing definition.
"Today’s action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to [Obama administration’s] 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,” EPA and the Army Corps of Engineers said in a joint statement.
“A remand would avoid potentially unnecessary litigation in this court over aspects of the NWPR that will be reconsidered in a new rulemaking, would conserve the parties’ limited resources, and would best serve the interest of judicial economy," DOJ said in its motion. "In addition, remand would avoid requiring the agencies to take positions on merits questions that might appear to pre-judge issues that will be reconsidered through notice-and-comment rulemaking.”
At a Senate Appropriations Committee hearing Wednesday before the announcement was made, Regan said the agency will take into account “lessons learned” from earlier efforts to define WOTUS as it charts a new “path forward.” Regan said the agency plans to reach out to USDA, the Corps, and the agriculture community.
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“We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities,” Regan said in the statement issued Wednesday.
Alaska Sen. Lisa Murkowski, however, cautioned Regan not to engage in “regulatory over-reach."
The Trump EPA’s NWPR, which removed protections for ephemeral streams, was criticized by conservation and fishing and hunting groups and prompted several lawsuits.
The agencies said they have “determined that the rule is significantly reducing clean water protections,” particularly in arid states such as New Mexico and Arizona, “where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional.”
EPA and the Corps also said they found 333 projects that would have required CWA Section 404 permits before the NWPR, but now do not.
Earthjustice, an environmental law firm, criticized the latest development because the Trump-era rule will remain in place until the Biden administration can restore pre-2015 protections. “Trump’s Dirty Water Rule will remain in effect until the first round of rulemaking – which will take an undetermined amount of time -- is completed, leaving thousands of water bodies vulnerable to contamination, pollution and destruction,” the group said.
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