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Navigable Water Protection Rule Vacated

September 8, 2021

A Federal judge in Arizona issued a ruling on Tuesday August 31, 2021 that vacated the Navigable Waters Protection Rule
In June 2020, the Trump Administration launched the Navigable Waters Protection Rule, which narrowed the definition of Waters of the U.S. (WOTUS). Following a ruling by a federal judge in Arizona this past Tuesday, the Trump Administration rule has been vacated nationwide. Because the Obama Administration rule was repealed by the Trump Administration, we revert back to the 1986 rule and subsequent Rapanos U.S. Supreme Court interpretation. Depending on how future legal challenges go, it is unclear whether the District of Arizona decision will hold up nationwide.

The Biden Administration announced in June 2021 that the U.S. EPA and U.S. Army Corps of Engineers would be establishing a new rule to replace the Navigable Waters Protection Rule. The administration is proposing a two-pronged rulemaking process:

  1. Issue a foundational rule to restore WOTUS regulations that were in place up until 2015, with updates that correspond to relevant Supreme Court decisions, and
  2. Issue a second rule that refines the definition of WOTUS.

What does this mean for our clients?
In the short-term, we anticipate delays in the issuance of Jurisdictional Determinations and Clean Water Act permits by the U.Sl Army Corps of Engineers. Regulators will be adapting to changing rules and developing internal guidance; we have received feedback from the Detroit District of the Corps that all Jurisdictional Determinations have been paused pending further guidance. It remains to be seen how the Biden Administration’s refined definition of WOTUS will differ from the definition in the Navigable Waters Protection Rule. The regulated community and state and federal agencies will need to adapt to those upcoming changes. The timing of new rules is unclear at this time. We will continue to closely monitor these rules and keep our clients and project stakeholders informed.

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Jenny Carter-Cornell
+1-567-200-4355
jcornell@hullinc.com