2020 Environmental Real Estate Issues

In a June 9, 2021 news release, EPA and the Army announced their intent to revise the regulatory definition of “waters of the United States” (WOTUS) “to better protect our nation’s vital resources.”

Claims of Harm from Existing Rule
The Navigable Waters Protection Rule, promulgated in 2020 under President Trump, was one of several administrative actions President Biden has identified for review.  According to EPA, “a broad array of stakeholders…are seeing destructive impacts to critical water bodies under the 2020 rule.”

Hundreds of Projects Did Not Require Permits
The news release stated the agencies are “aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do.”

Historical Efforts and Litigation
The news release noted the history of efforts to define WOTUS and stated the new definition will be informed by “the experience of implementing the pre-2015 rule, the Obama-era Clean Water Rule, and the Trump-era Navigable Waters Protection Rule.”
The agencies intend “to initiate new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation.”   The reference to protections prior to 2015 reflects   an acknowledgment that court challenges to the Obama-era rule have been largely successful; any new definition will need to be narrower in scope.

Stakeholder Engagement
Development of a new WOTUS definition will require opportunity for public comment; details about public participation “will be forthcoming.”
To see the news release https://www.epa.gov/newsreleases/epa-army-announce-intent-revise-definition-wotus

Keith Bradley, Director, Ecological Services, GES, and I will present a complimentary webinar Clean Water Act Section 404: Today and Tomorrow on Tuesday July 20, 2021, noon-1 PM Central Time.  An invitation with registration information will be coming soon.