On January 23, 2020, the Environmental Protection Agency and the Department of the Army, Corps of Engineers (collectively referred to as the “Agencies”) finalized the long-anticipated Navigable Waters Protection Rule (“2020 Rule”) to define “waters of the United States” regulated under the Clean Water Act (“CWA” or “Act”). The CWA establishes the basic structure for regulating discharges of pollutants into the nation’s “navigable waters,” which is vaguely defined in the Act as “waters of the United States, including the territorial seas.” This definition has proved difficult to apply to the myriad of different types of water bodies within U.S. jurisdiction, resulting in numerous judicial and administrative efforts to determine the scope of the CWA. The 2020 Rule is the final step in the Trump administration’s plan to replace the Obama administration’s definition of “waters of the United States” set forth in the 2015 Clean Water Rule (“2015 Rule”). To complete the first step, on October 22, 2019, the Agencies published the final rule to repeal the 2015 Rule (“Repeal Rule”) and returned to the pre-existing 1986 rule and subsequent agency guidance documents. The Repeal Rule became effective on December 23, 2019, although it has already been challenged in numerous actions filed in federal court.
The 2020 Rule redefines the nature and scope of the waterbodies that the Agencies have authority to regulate under the CWA. As instructed by Executive Order 13778 (February 28, 2017), the Agencies generally modeled the 2020 Rule on the four-justice plurality opinion authored by Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006), rather than the “significant nexus test” approach described in Justice Anthony Kennedy’s concurring opinion in that case. In addition to the 2020 Rule itself, the Agencies released numerous fact sheets and supporting documents, including an overview of the 2020 Rule and the manner in which the Agencies intend to implement the 2020 Rule. The Agencies also intend to hold a public webcast on the 2020 Rule on February 13, 2020.
Several of the key divergences from the 2015 Rule include:
The 2020 Rule will go into effect 60 days after it is published in the Federal Register.
The Environmental Group of Davis Graham & Stubbs LLP works to ensure compliance, minimize potential exposure to environmental liability, and win cases when litigation arises. Please contact Zach Miller, Mave Gasaway, Andrea Bronson, or Kate Sanford if you would like to discuss these developments further or other water quality matters of concern to your company.