On a day that will live in infamy for other reasons, USEPA and
the Army Corps published its proposed rule turning back the clock
on the regulatory definition of Waters of the United States (WOTUS)
to pre-2015 regulations to replace the suspended Navigable Waters
Protection Rule (NWPR). The proposed rule removes the
certainty provided by the 2020 NWPR and reverts to case-specific
determinations of "relatively permanent" and
"significant nexus" of upstream tributaries, adjacent
wetlands and "other waters" to downstream foundational
waters. The Agencies are accepting public comments until
February 7, 2022. The Docket ID No. is
EPA-HQ-OW-2021-0602.
The Biden Administration halted the implementation of the Trump
Administration's NWPR following a lower federal court decision
this past August, punting back and forth the political football of
the reach of federal jurisdiction under the 1972 Clean Water Act.
Where the federal government doesn't exercise
jurisdiction,
