In my latest blog post for Independent Women’s Forum, I discuss the new proposed “navigable waters” rule and how reverting it back to 2015 levels could incur serious problems for private property rights.
In the name of an executive order titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” the Environmental Protection Agency (EPA) is undoing the Trump-era Navigable Waters Protection Rule (NWPR), returning the definition of “navigable waters” to a murky “significant nexus” parameter. In turn, the Biden administration intends to restore rule parameters back to the controversial 2015 “Waters of the United States” (WOTUS) rule to the Clean Water Act.
The Biden administration has called for restoring and recodifying WOTUS to pre-existing Obama administration-era rules, which broadly defined if waters had “significant nexus” to jurisdictional waters.
Environment Law and Policy noted how lopsided and complex the Obama-era rule was, writing, “Determining if waters had a “significant nexus” to jurisdictional waters under the 2015 rule often required case-specific analysis or the hiring of a consultant to assist with a jurisdictional determination and sometimes led to inconsistent application of the rule in different regions.
The Trump-era rule narrowed down and clarified the definition of “jurisdictional waters” by creating four distinct categories including “territorial seas and traditional navigable waters; perennial and intermittent tributaries that contribute surface water flow to such waters; certain lakes, ponds, and impoundments of jurisdictional waters; and wetlands adjacent to other jurisdictional waters.”