Both because it wants to and because a federal court wants it done, the EPA will be working on a new Navigable Waters Protection Rule.
Such work has gone on now for almost 50 years. The Clean Water Act of 1972 says adding pollutants or dredge or fill material into a “water of the United States (WOTUS)” is unlawful without a permit.
It was not until June 22, 2020, that the Trump EPA managed to enact a federal definition of a WOTUS rule that addressed the alleged overreach of the Obama era. Rain captured in tractor tire tracks would no longer be called “navigable waters.”
However, within a year, the Biden EPA announced its intent to revise the WOTUS definition because the Navigable Waters Protection Rule enacted by the Trump administration “is leading to significant environmental degradation.”
And on Aug. 30, a federal district court in Arizona said the 2020 Navigable Waters Protection Rule from the Trump EPA is no longer valid. The ruling, which the Biden Justice Department is unlikely to appeal, clears the way for a new round of rulemaking as the Biden EPA comes up with its definition of federal water.
The Trump administration worked for more than three years to craft a rule that gave EPA and the Army Corps of Engineers authority to regulate clearly defined navigable waters, but not such features as man-dug ditches and isolated ponds. These would fall under state and local authorities.
The Biden administration has erased that approach with a few months of work and returned WOTUS to the 2015 version. EPA Administrator Michael Regan has promised “meaningful stakeholder engagement” during the new rulemaking process.
EPA says the new regulatory effort will be guided by:
- Protecting water resources and communities consistent with the Clean Water Act;
- The latest science and effects of climate change on waters;
- Emphasizing a rule with practical implementation for state and tribal governments; and
- Reflecting the experience and input of landowners, the agriculture community, state and tribal governments, and others.
EPA announced the new rulemaking on June 9, 2021. “A durable definition of WOTUS is essential to ensuring clean and safe water in all communities–supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry,” according to the agency.
Regan was sworn in as the 16th EPA Administrator on March 11, 2021, after receiving a bipartisan Senate confirmation vote of 66 to 34.
Prior to his nomination as EPA Administrator, Regan served as the Secretary of the North Carolina Department of Environmental Quality (DEQ). He is a native of Goldsboro, NC, where he developed a passion for the environment while hunting and fishing with his father and grandfather and exploring the vast lands, waters, and inner Coastal Plain of North Carolina.
Regan spearheaded the development and implementation of North Carolina’s seminal plan to address climate change and transition the state to a clean energy economy. He secured the largest coal ash clean-up in U.S. history. He led complex negotiations regarding the clean-up of the Cape Fear River, which had been contaminated for years.
He began his career with EPA eventually becoming a national program manager responsible for designing strategic solutions with industry and corporate stakeholders to reduce air pollution, improve energy efficiency and address climate change.
“Throughout his career, ” his official EPA biography says, “he has been guided by a belief in forming consensus, fostering an open dialogue rooted in respect for science and the law, and an understanding that environmental protection and economic prosperity go hand in hand.”
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