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The Biden administration has begun the process of installing a new “waters of the U.S." rule by proposing to replace the 2020 Navigable Waters Protection Act with regulations from the 1980s, plus expanded guidance derived from a fractured Supreme Court decision that set two standards for federal oversight.
The Environmental Protection Agency and the U.S. Army Corps of Engineers will hold virtual public hearings on the proposed rule in January and receive further public comments during the first quarter of 2022. A final rulemaking is expected in 2023. The agencies released a pre-publication of the proposed rule Nov. 18.
Through the years, NRECA has advocated for clearer WOTUS regulations that protect natural resources while allowing co-ops to build and maintain rural infrastructure to provide members with reliable and affordable electricity.
This latest proposal may create murkier authority. While it contains original WOTUS definitions and provisions for water features such as navigable waters, interstate waters and territorial seas, the proposed rule also updates oversight of wetlands, tributaries and “other waters" based on the “relatively permanent standard" and the “significant nexus standard" created by the 2006 Supreme Court's 4-1-4 Rapanos v. United States ruling on WOTUS jurisdiction.
The 2020 rule limited federal jurisdiction to waters with a “relatively permanent flow" and “continuous surface water connection." A federal district court vacated that rule in August. A 2015 WOTUS rule, which never took effect, largely relied on the “significant nexus" rule drafted and would have extended federal authority over things like gullies and dry washes.
“A WOTUS rule that would extend federal jurisdiction to features that meet either the relatively permanent or significant nexus tests is certainly an interesting development with impacts that may only be known on a case-by-case basis," said Dorothy Kellogg, NRECA regulatory affairs director. “It would sacrifice much of the jurisdictional clarity provided in the 2020 rule."
The proposed rule also would retain two key exclusions—prior converted cropland and waste treatment systems. It does not specify other exemptions.