EPA announces it will again revise WOTUS rule

EPA and the Department of the Army have announced that they intend to revise the recently enacted Navigable Waters Protection Rule (NWPR) and will begin the process of public engagement as part of a new rulemaking process. While the two agencies initiate this process, the NWPR will remain in effect absent any changes that may result from ongoing litigation in federal courts. This will be the third effort at revising this rule in the past six years.

Prior to the NWPR, EPA and the U.S. Army Corps of Engineers finalized a rule in June 2015 that significantly expanded the definition of “waters of the United States” (WOTUS), also known as “navigable waters,” under the Clean Water Act. The 2015 rule, which ICSC expressed concerns about, vastly expanded EPA’s and the Corps’ regulatory authority and was challenged in court by dozens of states and municipalities, as well as industry and environmental organizations. It was later blocked by the 6th Circuit Court of Appeals and was subject to broad court intervention across the country. It was formally withdrawn by the previous administration prior to enacting a second narrower version of the NWPR in 2020.

The 2020 NWPR, which ICSC supported, provides substantial clarity and many benefits to regulated industries. For example, it exempts ephemeral features that form only in response to rainfall, eliminates ambiguous tests to determine jurisdiction and removes many isolated features from federal jurisdiction. As a result, builders and developers were expected to require fewer federal wetland permits and have greater ability to determine their permitting needs for themselves. At the same time, waters that may no longer have had federal protection remained subject to oversight by states.

In announcing the change, EPA Administrator Michael S. Regan stated: “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.”

While Administrator Regan expressed a commitment to engage all stakeholders and hear their concerns, the earlier 2015 WOTUS rule injected significant uncertainty into the land use sector. ICSC, as part of the greater business community, will be engaging in the new rulemaking process to seek to avoid the overreach of the 2015 rule, which in many instances resulted in increased permitting costs and project delays, while also seeking to be constructive partner to help provide clean water solutions.