The 2020 Navigable Waters Protection Rule will remain in place while the Environmental Protection Agency and Army Corps of Engineers revisit the Trump administration policy and potentially redefine the “waters of the U.S.”
A July 15 order by a federal judge in South Carolina granted the Biden administration’s remand petition, which asked the court to keep the rule in effect while they rework it.
The court also dismissed challenges by an environmental group to the rule’s exclusion of wastewater treatment.
“This is a good outcome in this court and before this judge,” said Dorothy Kellogg, NRECA senior director on water issues.
EPA and the Corps are seeking to undo the Navigable Waters rule, which was issued by the Trump administration after a court decided that the Obama-era Waters of the U.S. (WOTUS) rule exceeded the authority of the Clean Water Act.
Kellogg said the Biden administration identified what it interpreted to be substantive problems with the 2020 rule and has pledged a robust stakeholder engagement process as part of its effort to promulgate a new rule.
Action to rescind and/or replace the 2020 Navigable Waters rule will require a new rulemaking, which can take more than two years, she said.
NRECA and its member electric cooperatives preferred the 2020 regulation over the 2015 WOTUS rule. That rule had placed features like gullies, ditches and dry washes under federal purview and would have placed greater regulatory hurdles and costs on rural electric co-op efforts to build and maintain critical infrastructure. Courts stayed the rule and it never took effect.
The Navigable Waters rule reflected the plurality in 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.”