EPA’s “temporary” WOTUS proposed rule: Consider it real

January 20, 2022

EPA and the Army Corps of Engineers announced last June three steps to revise Waters of the U.S WOTUS; (1) repeal the Trump Navigable Waters Protection Rule (NWPR), (2) replace it with a “temporary” rule using the WOTUS rules and guidance in effect before the 2015 Obama-era rule was finalized, and 3) issue a new, permanent and durable WOTUS definition by rulemaking that, according to them, would supposedly keep the best of the Trump and Obama rules.

On December 7, 2021, the agencies published a proposed rule that repeals the NWPR rule and, in its place, adopts pre-2015 WOTUS rules in the Federal Register. This new proposed rule includes codifying elements of the guidance developed after two key Supreme Court decisions that struck down important aspects of the agencies’ implementation of the Clean Water Act.

The agricultural organizations and industry fear, for good reasons, that the so-called “temporary rule” will be the only final WOTUS rulemaking during this administration and are treating it with utmost seriousness. This “temporary rule” goes well beyond the pre-2015 policies and into what very well could prove to be unlawful territory. The language again fails to give the term “navigable” a meaning consistent with past Supreme Court decisions that identified the limits that Congress placed on the scope of federal regulatory authority under the Clean Water Act.

Comments are due on February 7, 2022, and UEP will be filing comments individually and as part of the broader Waters Advocacy Coalition.