On June 23, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers filed a notice of appeal in Colorado v. EPA, D. Colo., seeking to reverse a June 19 court decision that blocked the Trump Administration’s Navigable Waters Protection Final Rule which redefines “Waters of the United States” (WOTUS). The legal challenge will go to the U.S. Court of Appeals for the Tenth Circuit.
Notably, Colorado is the only state in the country where the current Administration’s WOTUS definition is not officially in effect. A California court on June 19 rejected state requests for injunctions against the April 2020 final WOTUS rule, which went into effect on June 22, 2020.
On April 21, EPA and the U.S. Army Corps of Engineers published the Navigable Waters Protection Final Rule which redefines “Waters of the United States” (WOTUS). The WOTUS rule defines the scope of waters that are protected by federal anti-pollution laws under the Clean Water Act. Under the Navigable Waters Protection Final Rule, EPA and the Army Corps narrowed the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before.
The new WOTUS definition is far narrower than the previous version, as it excludes federal oversight of isolated wetlands and ephemeral streams that only flow after a heavy rainfall. However, the revised definition does include protection of intermittent streams that flow only during certain times of year. According to EPA, this revised definition increases the predictability and consistency of Clean Water Act programs.
There are still several legal challenges playing out in district courts across the country, including some brought by groups maintaining that the final rule illegally concludes that streams fed only by rain or snowfall aren’t “waters of the United States,” and thus are no longer protected under the Clean Water Act.
In May 2015, EPA released the final WOTUS rule with the Army Corps, over the objections expressed by many, including ACA. The 2015 WOTUS rule definition gave the federal government jurisdiction over some of the smallest waterways in the country, including authority over smaller bodies of water that EPA doesn’t already regulate.
In February 2017, President Trump issued Executive Order 13778, which directed EPA and the Army Corps to review and rescind or revise the 2015 WOTUS rule. As a result, EPA and the Army Corps initiated a comprehensive, two-step process intended to repeal (step one) and revise (step two) the definition of WOTUS. The agencies officially completed this process after issuing the Navigable Waters Protection Final Rule.
ACA has consistently supported recodification of the regulatory text that existed prior to the 2015 WOTUS rule, and revising the definition to more clearly define that “waters of the United States” are waters within the ordinary meaning of the term.
More information can be found on EPA’s website.
Contact ACA’s Rhett Cash for more information.