The EPA and the Army Corps of Engineers (Corps) have announced their intent to revise the 2020 Navigable Waters Protection Rule (NWPR) A change was being considered since President Biden took office. But this is the first official declaration that the NWPR will be “remanded” back to the agencies, meaning it will be replaced. There are a lot still to be determined, included the scope of changes and timing. Until anything happens, the NWPR remains the law of the land in all 50 states.
The EPA and Corps discussed their rationale for a remand in papers filed in the federal district court for Massachusetts (where the NWPR is being litigated) as well as on a conference call last week with advocates that included GCSAA’s Bob Helland. They mentioned that in states like Arizona a number of streams were no longer under federal jurisdiction under the NWPR. They also mentioned 333 projects that would have required federal projects that no longer do. None of this indicates however that the NWPR is resulting in environmental damage.
The EPA did not discuss the number of water features that remain under federal jurisdiction, nor do they talk about the role that states play in protecting waters, which follows the cooperative federalism principles found in the Clean Water Act. This is why GCSAA opposed the “once-size-fits-all” approach of the 2015 Clean Water Rule (commonly known as “WOTUS”). The needs to be a rule that respects the role played by federal, state and local stakeholders with water (including superintendents). And, that rule needs to be based on sound science.
There are many unknowns as to how the NWPR will be replaced and when. Changes could be surgical or all-encompassing. However, the regulatory process requires notice and the right to provide comment. Expect GCSAA to do so vigorously. Changes will not happen quickly, and until they do, the NWPR remains the law of the land.