WOTUS Whiplash | Ward and Smith, Pennsylvania

The ongoing saga of defining “United States Waters” (WOTUS) continues.

In this last installment, we actually traveled back in time to 2008. The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) recently concluded virtual public meetings to receive comments from interested stakeholders to revise the WOTUS definition long debated under the Navigable Waters Protection Rule 2020 (“Rule 2020”). The 2020 rule replaced the 2015 drinking water rule. But just a week after the meetings ended, agencies announced that they were suspending implementation of the 2020 rule and would interpret WOTUS’s definition “in accordance with to the pre-2015 regulatory regime until further notice ”.

What caused this about-face? On August 30, 2021, an Arizona Federal District Court issued a decision overturning the 2020 rule to avoid alleged serious environmental damage. The Arizona case was not the first or only legal challenge to the 2020 rule. The EPA and the Corps could have chosen to leave the current regulations in effect until a new WOTUS definition. be drafted, as they indicated in the June 2021 “Notice of United States Waters Public Meetings”. Instead, the EPA and the Corps withdrew.

The New-Old Approach of the EPA and The Corps – applying the “pre-2015 regulatory regime“As they continue to make rules, this means taking a step back from their 2008 response to the 2006 US Supreme Court ruling Rapanos decision. This response was to apply the case-by-case “significant connection” analysis to prove or disprove hydrologic connectivity for those applying for a permit from the Corps to impact WOTUS under Section 404 of the Clean Water Act. . Dusting off the 2008 guidance, it appears that relatively permanent tributaries and ephemeral streams are back under agency jurisdiction, and the “significant link” test will be applied to non-navigable tributaries and wetlands. adjacent.

The question remains whether a decision by an Arizona federal court can actually repeal the 2020 rule in North Carolina. Leaving this issue aside, those with vested interests in real estate development, agriculture, manufacturing and others engaged in land-disturbing activities will unfortunately see the speed at which jurisdictional decisions slowly flow to the trickle of water. ‘an intermittent flow. If the agencies’ response to the Arizona court ruling secures a nationwide repeal, then perhaps the development of replacement rules can begin sooner. Either way, the predictability to which the regulated community aspires has once again been blurred.