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July 19, 2021 Practice Points

No Vacatur of 2020 Navigable Waters Protection Rule

With the previous rule said to be too broad and the current rule too narrow, WOTUS regulation seeks its own level.

By Karen Aldridge Crawford

On July 15, 2021, a South Carolina U.S. district court judge granted the motion of the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers remanding without vacatur the Navigable Waters Protection Rule: Definition of “Waters of the United States” (WOTUS) commonly referred to as the “Trump Rule,” promulgated on April 21, 2020 at 85 Fed. Reg. 22,250.

This rule followed years of litigation over the prior rule developed and promulgated by the Obama administration (Obama Rule), which was also litigated across the country. While many states, agricultural stakeholders, and industry argued that the Obama Rule went beyond the intended reach of the Clean Water Act, now environmental groups argued the Trump Rule is too narrow. Meanwhile the EPA and the Corps have said that they will rescind and replace the Trump Rule and are working on development of that replacement. The new administration has coined the term “durable” to describe its goal of developing a regulation that will hopefully avoid the litigation to which the two predecessor rules have been subjected.

Karen Aldridge Crawford is owner of KLAC Law LLC in Columbia, South Carolina.


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