Updated: Sept. 15
The Biden administration confirmed that “Waters of the United States" guidelines dating to the 1980s will be implemented nationwide until a replacement rule is finalized after a recent federal court order rescinded the Trump-era 2020 Navigable Waters Protection Rule.
Responding to a decision by an Arizona court, the Environmental Protection Agency and the U.S. Army Corps of Engineers will stop rendering decisions based on the 2020 rule and default back to the pre-2015 definition of federal jurisdiction under the Clean Water Act.
Co-ops own and maintain 2.7 million miles of distribution lines spanning 56% of the nation's landmass and are building more power lines to connect new generation and serve new load.
“By taking us back to original WOTUS definitions, these new power lines may cross more regulated water bodies and that adds cost and time to their construction and maintenance projects," said Dorothy Kellogg, NRECA regulatory director for environmental policy.
The administration intends to propose a rule to replace the 2020 waters rule in the coming months before moving forward with finalizing new WOTUS regulations in 2022.
The Aug. 30 court order in Pasqua Yaqui Tribe v. EPA vacated the 2020 rule rather than returning it to the EPA and Army Corps of Engineers for revision as requested by the Biden administration. That order covered at least those areas in the petition brought by Native American tribes in parts of Arizona, Minnesota, Washington and Wisconsin.
In July, a federal judge in South Carolina granted the administration's petition to remand the 2020 WOTUS rule but leave it in place until it is replaced.
“While NRECA believes the 2020 Navigable Waters rule was protective and legally defensible, we will work with the Biden administration to assure their approach is reasonable and provides certainty for cooperatives," said Kellogg.
The 2020 rule was written to replace Obama-era WOTUS regulations that had broadly extended federal oversight to features like gullies, ditches and dry washes and increased requirements and compliance costs for utilities. Two federal courts banned the 2015 WOTUS rule, and it never took effect.
The Navigable Waters rule reflected the 2006 Supreme Court decision Rapanos v. United States that limited federal jurisdiction to waters with a “relatively permanent flow" and “continuous surface water connection."
The pre-2015 rule that is now in place defined WOTUS to include all interstate waters, those used in the past, present or future for interstate or international commerce, and bodies from intrastate lakes to prairie potholes that could affect water quality if they were used, degraded or destroyed.