On Aug. 30, a U.S. District Court for the District of Arizona judge struck down the Trump administration’s final rule revising the definition of “waters of the United States” that are federally regulated under the Clean Water Act. As a member of the Waters Advocacy Coalition, ABC applauded the 2020 rule, known as the Navigable Waters Protection Rule, which provided four clear categories of waters under the CWA that businesses and landowners could easily understand.
As a result, the areas affected by the decision must comply with the definition of WOTUS established in the 1980s, which is broader in scope and affects more categories of waters than the Trump rule. However, as of this writing, the Biden administration has not resolved whether the 1980s definition will be applied nationally or on a narrower scale—such as on land controlled by the six plaintiff tribes or the states in which those tribal lands are located—which will cause uncertainty for businesses in complying with federal regulations.
Additional clarity will be needed from the administration on how this new ruling will be put in place. ABC is currently reviewing the decision and will provide further guidance on how the decision impacts the construction industry at a later date.
In her decision, the judge wrote that although the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers have stated their intent to replace the definition of WOTUS under the NWPR, allowing the Trump-era regulation to stay in place while the administration works on a new definition of WOTUS could lead to serious environmental harm.
Sen. Shelley Moore Capito, R-W.Va., ranking member on the Senate Environment and Public Works Committee, released a statement following the decision to strike down the rule, stating in part that “while the ruling cites ‘the possibility of serious environmental harm if NWPR remains in place,’ there hasn’t been any evidence from either agency to support the claim.”
EPA and the Corps have held a series of public meetings to hear from interested stakeholders on their perspectives on defining WOTUS and how to implement that definition as the agencies pursue this process. Additionally, the agencies are accepting written comments on their intent to revise the definition of WOTUS. ABC plans to submit comments as a member of WAC before the Sept. 4 deadline.
ABC will continue to monitor and provide updates on this decision in Newsline. More information on WOTUS can be found on the EPA website.