In April of 2020 the Environmental Protection Agency (EPA) finalized the Navigable Waters Protection Rule, which sets the definition for “Waters of the United States” which waters are under the jurisdiction of the U.S. Army Corps of Engineers (Corps) and EPA.  (https://www.epa.gov/sites/production/files/2020-01/documents/navigable_waters_protection_rule_prepbulication.pdf.)  This 2020 rule, issued under the Trump Administration, set forth a definition of “Waters of the United States” which was more restrictive than under previous administrations and therefore limited the federal government’s ability to regulate development in waters not included in the new definition.  On Wednesday, June 9, 2021, EPA Administrator, Michael Regan announced that the EPA will formally repeal the 2020 the Navigable Waters Protection Rule, as the 2020 rule is “leading to significant environmental degradation.”  (https://www.politico.com/news/2021/06/09/epa-navigable-waters-protection-rule-repeal-492638.)  Based on Administrator Regan’s statements and the Biden Administration’s policies on environmental issues, it should be expected that a new Navigable Waters Protection Rule will include a much more expansive definition of “Waters of the United States” that captures many waters that were excluded by the current rule.  It can be expected that under a more expansive Navigable Waters Protection Rule, more development projects will be subject to federal regulation and will consequently require permits from the Corps.

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