A new WOTUS rule in the works; is it déjà vu?

June 17, 2021

The Biden Administration announced last week that EPA and the Army Corps of Engineers is seeking a South Carolina federal district court’s approval to withdraw the ‘waters of the United States (WOTUS) rule created in 2020 during the Trump Administration. A new rulemaking defining WOTUS would be crafted, though the 2020 rule will remain in effect until the new rule is finalized.  Court approval of this request is expected, but not guaranteed.

Agriculture is deeply concerned about the lack of legitimate justification from the Biden Administration for replacing the 2020 rule with a new one. These actions signal a de-facto return to the reasoning that led to the highly problematic, and unlawful, 2015 rule created by the Obama Administration. Notably, without establishing whether any identifiable environmental harms have or will take place under the 2020 rule, the agencies cited several “ephemeral” waters, particularly in the West, that are no longer jurisdictional, and some 330 projects that now would move forward without a permit under the 2020 rule.

Should this early action proceed, the road ahead for a new WOTUS rule will be highly divisive. Some observers note that the agencies were forced to move quickly by the courts.

This announcement is particularly surprising given the statement by Michael Regan, the new EPA administrator, during his Senate hearing last month.  Regan said, “We don’t have any intention of going back to the original Obama ‘Waters of the U.S.’ verbatim, and we don’t necessarily agree with everything that was in the Trump administration’s version as well. We’ve learned lessons from both, we’ve seen complexities in both, and we’ve determined that both rules did not necessarily listen to the will of the people.”