EPA and USACE Announce Proposed Rule to Repeal Navigable Waters Protection Rule

November 18, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) announced a proposed rule to repeal the Navigable Waters Protection Rule (NWPR). The NWPR was issued in 2020 and established a new definition for "waters of the United States" (WOTUS) that are subject to regulation under the Clean Water Act. The NWPR, following the repeal of President Obama’s 2015 Clean Water Rule, narrowed the definition by excluding certain bodies of water, such as groundwater or creeks or streams that dry up at certain times of the year, from regulation. In June 2021, the agencies announced their intent to repeal and replace NWPR with a new definition of WOTUS.

The NWPR was already overturned by a federal court on August 30, as covered by APWA in an Advocacy News item. Since the decision, EPA has been enforcing the pre-2015 definition of WOTUS. The proposed rulemaking will codify the repeal of the NWPR and set the stage for a ‘Phase 2’ rulemaking process that will provide a new definition of WOTUS. Continuing litigation is expected from industry groups supportive of the NWPR.

September 17, APWA issued pre-proposal comments on the agencies’ plans to revise WOTUS. These comments urged continued regulatory certainty for public works in the new WOTUS rule.

A 60-day comment period on the proposed rulemaking will begin once it is officially published in the Federal Register, likely the week of November 22. For more information, please see EPA’s announcement and the pre-publication version of the proposed rule.

If you have any questions or comments, please reach out to APWA Government Affairs Manager Michael Altman at maltman@apwa.net or (202) 218-6727.