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EPA to Rewrite WOTUS, Again

Jul 6, 2021 | 30x30, Issues | 0 comments

The controversial Waters of the United States rule promulgated by the Obama Administration that redefined “navigable” waters under the Clean Water Act to include virtually every stream, seep, and puddle of water, may be coming back under the Biden Administration.  Many entities sued the Obama Administration over the rule, including 28 States, because it was a clear act of federal overreach in violation of States’ rights. The States won their case, and the Trump Administration issued a new rule in compliance with court rulings that went into effect last June.

As expected, environmentalists are challenging the Trump rule. In Conservation Law Foundation v. EPA, the Biden Administration has asked the court to remand the rule while the new Administration begins a new rule-making process. The question remains, will the rewrite dust off the Obama rule, or take on a different form?  According to E&E News, EPA Administrator Michael Regan “announced his agency would begin a new rule making to restore the pre-2015 definition of what constitutes ‘waters of the U.S.’”  But the pre-2015 rule also had issues, notably resulting in the Rapanos decision, which concluded in part:

“The phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, [and] lakes,” Webster’s New International Dictionary 2882 (2d ed.), and does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of that phrase is thus not “based on a permissible construction of the statute.” Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843. Pp. 12–21.”

Many States have already signaled they will once again challenge a rule that infringes on the States authority to regulate land and waters in their respective States.