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WOTUS Update: Finalized Navigable Waters Protection Rule and Current Litigation

By Mary Scott

The COVID-19 (coronavirus) pandemic hasn’t prevented the Navigable Waters Protection Rule from being finalized, nor has it stopped litigation forecasted in NACD’s last blog on waters of the United States (WOTUS). Revision of the 2015 WOTUS rule comes from a campaign promise made by the Trump Administration and is consistent with an Executive Order (EO) issued in 2017 by President Trump. NACD has previously advocated for the reversal of the 2015 WOTUS rule and engaged in the new rulemaking process. NACD submitted public comments on the proposed rule defining “waters of the United States” under the Clean Water Act (CWA) last spring.

Under the new 2020 rule, broad definitions set forth in the 2015 Obama Era WOTUS rule have been tightened in an effort to provide more clarity. Highlights include the continued protection of tributaries; but ephemeral tributaries, which are only present during precipitation, have been removed in the 2020 rule. The definition of lakes and ponds has been clarified, and now excludes “artificial lakes and ponds that are not jurisdictional impoundments and that are constructed or excavated in upland or non-jurisdictional waters.”

Several groups opposed to the new rule have filed lawsuits against the new rule, but as of the writing of this blog, the 2020 rule has taken effect in all states, with the exception of Colorado. In the case State of Colorado v. U.S. Environmental Protection Agency et al., a federal judge in Colorado issued a preliminary injunction prohibiting the rule from going into effect. Opposing parties of the rule attempted a similar battle in California; ultimately, their attempt was unsuccessful. The court in California ruled to move forward with the rest of the nation when the rule went into effect June 22.

Several other lawsuits have been filed from New Mexico to South Carolina, and although the new law is in effect, the future of the rule is still in jeopardy as these lawsuits work their way through the court system.

Many environmental groups continue to address their concerns with the Trump Administration’s new rule on navigable waters through the court system and additional lawsuits may still be filed. NACD will continue to provide updates on the new Navigable Waters Protection Rule and the Clean Water Act as they become available.

Tags: WOTUS

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