EPA Repeals 2015 Definition of WOTUS

EPA Repeals 2015 Definition of WOTUS

On Sept. 12, the U.S. Environmental Protection Agency (EPA) announced the Administration’s repeal of a 2015 rule that redefined the regulatory definition WOTUS, or ‘Waters of the United States.’ In May 2015, EPA released the final WOTUS rule with the U.S. Army Corps of Engineers, over the objections expressed by many, including ACA. The 2015 WOTUS rule definition gave the federal government jurisdiction over some of the smallest waterways in the country, including authority over smaller bodies of water that EPA doesn’t already regulate.

In February 2017, President Trump issued Executive Order 1377, which directed EPA and the Army Corps to review and rescind or revise the 2015 WOTUS rule. As a result, EPA and the Army Corps initiated a comprehensive, two-step process intended to repeal (step one) and revise (step two) the definition of WOTUS. Since then, the agencies issued three rulemakings pertaining to step one of the process that attempt to: (1) repeal the 2015 WOTUS definition, (2) recodify of the pre-2015 WOTUS definition and regulation, and (3) delay the effective date of the 2015 WOTUS rule to provide additional time and regulatory certainty while the agencies complete their two-step process. These efforts were met with legal action by various entities, though, and several district courts ruled that the agencies did not follow proper procedures to delay implementation of the 2015 WOTUS rule. So, on March 8, 2019, the Trump administration abandoned its bid to use the courts to delay implementation of the 2015 WOTUS rule and instead decided to focus its efforts on rulemaking activities already underway at EPA.

Now that EPA formally repealed the 2015 WOTUS rule on Sept. 12, EPA and the Army Corps will focus on step two, which revises the definition of WOTUS. In February 2019, EPA and the Army Corps published a proposed rule that offers a new definition for “waters of the United States” by clearly outlining where federal jurisdiction begins and ends in accordance with the Clean Water Act, EPA guidance, and Supreme Court precedent. Of note, the agencies proposed a baseline concept that “waters of the United States” are waters within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are “waters of the United States.” In addition, the agencies differentiate between federally regulated waterways and those waters that are to remain solely under state authority.

A final rule that offers a revised definition of WOTUS is not expected until 2020. The repeal takes effect 60 days following official publication in the Federal Register.

ACA has submitted comments in general support of EPA and the Army Corps’ efforts to repeal the 2015 WOTUS rule and recodify the regulatory text that existed prior to the 2015 rule, and revise the definition to more clearly define that “waters of the United States” are waters within the ordinary meaning of the term.

Contact ACA’s Rhett Cash for more information.

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