On a day that will live in infamy for other reasons, USEPA and the Army Corps published its proposed rule turning back the clock on the regulatory definition of Waters of the United States (WOTUS) to pre-2015 regulations to replace the suspended Navigable Waters Protection Rule (NWPR). The proposed rule removes the certainty provided by the 2020 NWPR and reverts to case-specific determinations of "relatively permanent" and "significant nexus" of upstream tributaries, adjacent wetlands and "other waters" to downstream foundational waters. The Agencies are accepting public comments until February 7, 2022. The Docket ID No. is EPA-HQ-OW-2021-0602.
The Biden Administration halted the implementation of the Trump Administration's NWPR following a lower federal court decision this past August, punting back and forth the political football of the reach of federal jurisdiction under the 1972 Clean Water Act. Where the federal government doesn't exercise jurisdiction, waters are not unprotected -- that's where the states and tribes come in. But you wouldn't know that by the protestations of NWPR opponents, asserting that states and tribes were incompetent to regulate waters without the fatherly guidance of the federal government. Woe to us, the WOTUS saga continues...
"Though EPA and the [Corps] are not currently implementing the NWPR, the agencies are aware that further developments in litigation over the rule could bring the rule back into effect. For these reasons,...the agencies have decided that prompt replacement of the NWPR through the administrative rulemaking process is vital."
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