On June 9, 2021 the Department of Justice, in coordination with EPA and the Department of the Army, filed a motion in the U.S. District Court for the District of Massachusetts requesting that the court remand the Navigable Waters Protection Rule (NWPR) back to the agencies. EPA and the Department of the Army intend to start a new rulemaking to revise the definition of “waters of the United States” (WOTUS).
Link to EPA Press Release:
Enclosed is a copy of the DOJ motion (clf_memo_of_law_iso_motion_for_remand ) to remand the Navigable Waters Protection Rule back to EPA and the Department of the Army so that a new rulemaking can be undertaken.
“The Clean Water Act prohibits the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the Act. Navigable waters are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” (WOTUS) is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.”
In 2015 EPA and the Army adopted revisions to the definition of WOTUS under the Clean Water Act (the revisions were referred to as the Clean Water Rule). Almost immediately, the Rule was challenged in court and implementation was halted in a number of States. In March 2017 EPA and the Department of the Army indicated their intent to rescind or revise the Clean Water Rule. In April 2020 a revised WOTUS definition was adopted by EPA and the Department of the Army (referred to as the Navigable Waters Protection Rule).
On January 20, 2021 President Biden issued Executive Order 13990 (“Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis”). Executive Order 13990 states in part: “The heads of all agencies shall immediately review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (agency actions) promulgated, issued, or adopted between January 20, 2017, and January 20, 2021, that are or may be inconsistent with, or present obstacles to, the policy set forth in…” Executive Order 13990.
Link to Executive Order 13990