EPA, Army to Repeal WOTUS

October 3, 2019

On Sept. 12, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finalized the first step of a two-step process to repeal and replace the Obama Administration’s 2015 Waters of the United States (WOTUS) rule. The rule, deals with defining what natural features are considered federal waters under the Clean Water Act (CWA). Specifically, the rule repeals the Obama-era rule and restores regulations from the 1980s. In a subsequent final rule, expected by the end of 2019, the agencies will revise the definition of WOTUS yet again.

Before the final rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 Rule. This final rule reestablishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 Rule, which is more familiar to the agencies, states, tribes, local governments, regulated entities, and the public while the agencies engage in a second rulemaking to revise the definition of WOTUS.

The two federal district courts that have reviewed the merits of the 2015 Rule found that the rule suffered from certain errors and issued orders remanding the 2015 Rule back to the agencies. Multiple other federal district courts have preliminarily enjoined the 2015 Rule pending a decision on the merits of the rule. In this action, EPA and the Army Corps. jointly conclude that multiple substantive and procedural errors warrant a repeal of the 2015 Rule. For example, the 2015 Rule:

  • Did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases;
  • Failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources;
  • Approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress;
  • Suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 Rule’s distance-based limitations.

With this final repeal, the agencies will implement the pre-2015 regulations, which are currently in place in more than half of the states, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. The final rule takes effect 60 days after publication in the Federal Register.

In December 2018, EPA and the Army proposed a new definition—Step 2—that would clearly define where federal jurisdiction begins and ends in accordance with the CWA and Supreme Court precedent. In the proposal, the agencies provide a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.

Additional information is available at: http://www.epa.gov/wotus-rule.

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