September 28, 2021

Volume XI, Number 271


September 27, 2021

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An End to Draining the Swamp? U.S. EPA, Army Corps Announces Intent to Revise Definition of “Waters of the United States”

Yesterday, the U.S. EPA and the U.S. Army Corps of Engineers announced their intent to initiate a rulemaking process to promulgate a new definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (“CWA”). This move was widely anticipated, given that the Trump Administration’s rulemaking efforts on WOTUS – specifically, the Navigable Waters Protection Rule (“NWPR”), issued by the EPA and the Corps in January 2020 – significantly pared back the definition of WOTUS, removing some 60% of previously regulated waters from the agencies’ CWA jurisdiction. The NWPR replaced the 2015 Clean Water Rule, which had established an expansive definition of WOTUS. Although the NWPR is currently the subject of numerous pending legal challenges, it is the law of the land in all 50 states.

The agencies have filed a motion in the pending NWPR litigation requesting that the court remand the current rule back to EPA in light of the proposed rulemaking. If this motion is granted as proposed, the NWPR would remain in effect until the agencies promulgate a revised final rule.

At this point, all we can say for sure is that there is likely to be litigation challenging the agencies’ motion, and any subsequent decision made by the court. It is difficult to predict the timeline or what the courts may do with this, but there is a risk that projects may get caught in the middle of this change in definition.

Practically speaking, the agencies’ announcement throws uncertainty into pending permit applications and No-Permit-Required requests. Foley environmental attorneys are well-positioned to assist with WOTUS issues in this time of significant regulatory uncertainty.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 161

About this Author

Peter Tomasi, Foley Lardner, Environmental lawyer, regulations, environmental issues,
Of Counsel

Peter A. Tomasi is of counsel and a business lawyer with Foley & Lardner LLP, where he is a member of the firm’s Environmental Regulation Practice. His practice focuses on regulatory compliance and renewable energy. Mr. Tomasi has further experience with general civil, commercial, and intellectual property litigation.

Representative Experience

  • Representation of logistics providers and reverse distributors in rulemaking and enforcement matters involving hazardous waste pharmaceuticals
  • ...
Sarah Slack, environmental compliance counseling lawyer, Foley Lardner law

Sarah Slack is senior counsel and an environmental lawyer in the Business Law Department at Foley & Lardner LLP. Ms. Slack is a member of the Environmental Regulation Practice and the Life Sciences and Energy Industry Teams.

Ms. Slack divides her time between remediation/redevelopment work, environmental compliance counseling, transactions and environmental litigation. Ms. Slack has extensive experience on the cutting edge of Clean Air Act, Clean Water Act, Superfund, and RCRA enforcement, as well as citizen suit litigation, settlement...

Dorothy Watson, Foley Lardner Law Firm, Orlando, Environmental Law Attorney
Of Counsel

Dorothy E. Watson is of counsel at Foley & Lardner LLP and a member of the firm's Environmental Regulation Practice and Energy and Manufacturing Industry Teams.

Ms. Watson has worked with clients on a wide range of environmental matters, including compliance counseling, rulemaking, permitting, site remediation, brownfield redevelopment, corporate transactions, and litigation matters. Her experience extends to matters under Superfund, RCRA, the Clean Air Act, the Clean Water Act, TSCA, FIFRA, MSHA, and OSHA, as well as state environmental...

Nicholas R. Johnson Foley Lardner Law Firm state voluntary cleanup programs lawyer

Nicholas (Nick) Johnson is an associate with Foley & Lardner LLP and a member of the firm’s Environmental Regulation Practice.

Mr. Johnson has substantial experience in all facets of environmental law and corporate environmental risk management, including both contested proceedings and general regulatory guidance and advice with respect to CERCLA, RCRA, TSCA, the Clean Water Act, the Clean Air Act, state voluntary cleanup programs, and other state and federal environmental laws. Mr. Johnson routinely works with buyers, sellers, investment...