The Environmental Protection Agency and Army Corps of Engineers are pursuing ways to undo water regulations installed by the Trump administration and to redefine “waters of the U.S.” with greater federal authority, especially over wetlands and ephemeral streams.
The agencies recently petitioned the U.S. District Court of Massachusetts to remand the 2020 Navigable Waters Protection Rule back to the agencies for revision rather than proceeding with the legal challenge to the rule.
That rule was issued in response to an earlier court decision that the Obama-era 2015 WOTUS rule exceeded the authority of the Clean Water Act. The navigable waters rule reflected the Supreme Court’s Rapanos v. United States decision that federal jurisdiction was limited to waters with a “relatively permanent flow” and “continuous surface water connection.”
Dorothy Kellogg, NRECA senior director on water issues, said any action to rescind and/or replace the 2020 navigable waters rule will require a new rulemaking, which can take more than two years.
“Barring court action on one of the challenges, the navigable waters rule would remain in place until it is replaced through a subsequent notice-and-comment rulemaking,” said Kellogg. “That won’t happen any time soon.”
NRECA and its member electric cooperatives favor the 2020 Trump regulation over the 2015 WOTUS rule, which had placed features like gullies, ditches and dry washes under federal purview.
The 2015 rule, which was never implemented, would have placed greater regulatory hurdles and costs on rural electric co-op efforts to build and maintain critical infrastructure. Numerous courts had stayed that rule.
Kellogg said the new administration has made it “very clear” that it wants to replace the navigable waters rule, but EPA and the Corps recognize the substantive problems with the 2015 rule and have pledged a robust stakeholder engagement process as part of their goal to promulgate a durable rule.