On April 21, 2020, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published the Navigable Waters Protection Rule (the “Rule”) in the Federal Register. Pending likely challenges from opponents, who may seek to enjoin enforcement, the Rule will become effective on June 22, 2020. The Rule, which defines those “waters of the United States” (WOTUS) that are federally regulated under the Clean Water Act (“CWA”), remains largely unchanged from the version circulated in January 2020 and discussed in our prior Client Alert. The Rule, the culmination of a process designed to modify the scope of CWA jurisdiction, narrows the scope of water bodies subject to federal regulation. Industries such as construction, agriculture, and mining, whose operations typically impact WOTUS (e.g., discharges, dredging, filling), will be affected by the Rule. However, companies should be prepared for the possibility that legal challenges, including a judicial stay, may result in delayed implementation of the Rule. A copy of the published Rule can be found here.
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