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EPA, Army Release Final Rule on "Waters of the United States"

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on Dec. 30 released a final rule that repeals the Trump Administration’s 2020 Navigable Waters Protection Rule and adopts a new WOTUS definition. The agencies said that the new definition is founded on the pre-2015 WOTUS definition but is updated to reflect their broad interpretation of Supreme Court decisions.

Specifically, the EPA and Army Corps of Engineers released a final pre-publication version of the Phase I WOTUS rule.

The final rule is generally consistent with the agencies’ proposed rule. As with the proposal, the definition of WOTUS is broader in scope than the NWPR and the pre-2015 definition, particularly due to the agencies’ expansive read of a 2006 case (Rapanos v. United States). Importantly, the agencies maintain the waste treatment system exclusion and adopt a number of other exclusions. 

In February, the American Public Power Association submitted comments to the EPA and the U.S. Army Corps of Engineers in response to the proposed rule to revise the definition of WOTUS.

APPA has over the years provided to the agencies its position with respect to developing a clear and easily implementable WOTUS definition.

The final rule is expected to be published in the Federal Register soon and will become effective sometime in March 2023. 

Multiple challenges by industry and states are likely to be filed in district courts across the country, perhaps within the next few weeks. And the Supreme Court’s pending decision in Sackett v. EPA, (No. 21-454) may have implications for the durability of provisions of the rule.

Click here for more information on the final rule.

The agencies will host a public final rule overview webinar on January 19, 2023, from 12:00 pm – 1:00 pm ET.