The Clean Water Act is back in the news with the Environmental Protection Agency’s (EPA) recent announcement of its intent to repeal and replace the 2020 Navigable Waters Protection Rule (“2020 Rule”) that was discussed in the May 2021 Scout blog. Billy Preston’s hit from the 70’s, ”Will it Go Round in Circles,” in keeping with the theme from the last few blogs, seems very appropriate, especially as we take a closer look at what to expect in the months to come.
We’ll discuss EPA’s announcement in more detail below, but what is important to know right now is that the Justice Department has requested a Massachusetts Federal District Court remand the 2020 rule. Although EPA’s website section “Waters of the United States” and subsection “Intention to Revise the Definition of Waters of the United States” has not yet posted new guidance on WOTUS, several commentators have noted that the EPA intends to resurrect the 1986 regulations and the 2008 Rapanos Guidance, familiar to many of us who have worked in this field for a while. (See the JD Supra article: “EPA to Modify the Navigable Waters Protection Rule,” June 11, 2021, for more information.) So, the takeaway is that of this moment, it appears that the 2020 Rule is still in effect, but keep a close eye on EPA’s WOTUS website for updates.
Now let’s discuss EPA’s announcement to repeal the 2020 Rule in more detail.
EPA’s 2021 Repeal and Replace of the WOTUS Definition
With its announcement in early June coming sooner than some expected, the EPA fulfilled the prediction of commentators mentioned in the May 2021 Scout blog that the 2020 Rule would be repealed and replaced. EPA’s new administrator, Michael Regan, noted that environmental degradation from the 2020 Rule is particularly significant in the western states, which, as of this writing, is experiencing a scorching heat wave.
New Mexico and Arizona bore the brunt of the loss of more than 1,500 streams excluded from the definition of WOTUS under the 2020 Rule, according to Mr. Regan, and no doubt in no small part to the deletion of ephemeral streams from the definition of WOTUS. As can be seen in the recent lawsuit by Native American tribes in New Mexico, ephemeral streams have just as much capacity as intermittent streams to carry pollutants discharged upstream – in this case mining operations – downstream and degrade water quality, which pretty much sums up significant nexus. Oh, which was also deleted under the 2020 Rule.
The EPA pointed out in the 2021 Rule that writing the new WOTUS regulations will focus on protecting water resources using the latest science and climate change data. The new rule will also emphasize a practical implementation approach as well as reflecting input from stakeholders to include landowners and the agricultural community. This sounds like no easy task on a good day, let alone the current polarization of Congress and the public.
But Mr. Regan comes to the table with a reputation as the former head of the North Carolina Department of Environmental Quality of working closely with farmers and ranchers, two key stakeholders for writing a new WOTUS regulation. Also noteworthy is his statement that “we don’t have any intention of going back to the original Obama Waters of the U.S. verbatim.”
Mr. Regan will certainly need all his consensus building skills for the task of writing a new WOTUS regulation. “It’s hallucinogenic to think any sort of agreement could be reached among the long-warring parties,” Vermont Law School Professor Patrick Parenteau told Politico magazine last month.
As mentioned earlier, the Justice Department asked the federal court to “remand” the 2020 Rule and not “vacate” the rule. This means, for the time being, business as usual under the 2020 Rule, until the EPA likely announces a return to the 2008 Rapanos Guidance, the return of significant nexus from the dead, and possibly a return to the definition of “adjacent” wetlands as “bordering, neighboring, or contiguous.”
It’s anybody’s guess what the new rule will focus on, but if one had to surmise, ephemeral streams would be at the top of the list, along with the 2020 Rule’s definition of “adjacent” wetland as “abutting.” These areas of concern were mentioned in declarations of both the Acting Assistant Secretary of the Army for Civil Works and the Principal Deputy Assistant Administrator for Water at the EPA in the Massachusetts U.S. District Court case hearing the 2021 motion for remand.
As the WOTUS definition continues to go “round in circles,” be sure to keep a watch on the EPA’s website section, “Intention to Revise the Definition of WOTUS.” Rest and relaxation (“R & R”) used to mean a time to relax in the military, but there will be little time to rest even if the new WOTUS rule “fl[ies] high like a bird up in the sky.”
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