The Environmental Protection Agency (EPA) and the Army Corps signed a final rule last Thursday, September 12, to repeal the rule defining “Waters of the United States” (WOTUS) the agencies promulgated in 2015 (“2015 Rule”).  See pre-publication version, available at https://www.epa.gov/sites/production/files/2019-09/documents/wotus_rin-2040-af74_final_frn_prepub2.pdf.  The repeal will take effect 60 days after the rule is published in the Federal Register and has the effect of re-codifying the pre-2015 WOTUS definition.

The repeal is the first step in EPA’s plan to revise the definition of WOTUS in the Clean Water Act (CWA).  Step two is to replace the 2015 Rule with a new definition of WOTUS that is more aligned with the late Supreme Court Justice Scalia’s plurality opinion in Rapanos v. United States.

The 2015 Rule was met with extensive legal challenges, as well as an executive order by President Trump calling into question its lawfulness and its alignment with the goals of the CWA. The stated aim of Executive Order 13778, signed by President Trump in March of 2017, was to “promot[e] economic growth, minimize[e] regulatory uncertainty, and [show] due regard for the roles of the Congress and the States under the Constitution.”

The 2015 Rule was enjoined by courts in Georgia, North Dakota and Texas (see Georgia v. Wheeler, No. 2:15-cv-079, 2019 WL 3949922 (S.D. Ga. Aug. 21, 2019); Texas v. EPA, No. 3:15-CV-00162, 2019 WL 2272464, at *1 (S.D. Tex. May 28, 2019); North Dakota v. EPA, 127 F. Supp. 3d 1047 (D.N.D. 2015)).  As a result, the 2015 Rule is in effect in 22 states, while the remaining states (including Georgia) continue to operate under the pre-2015 WOTUS rule.  This repeal returns the entire country to the pre-2015 regime.

The agencies cite four reasons for the repeal of the 2015 Rule. First, the agencies assert that the 2015 Rule exceeded the scope of their authority under the CWA as intended by Congress and reflected in Supreme Court cases. Second, they state that the 2015 Rule failed to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources” in accordance with CWA section 101(b). Third, the agencies seek to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jurisdiction over traditional State land-use planning authority.  Finally, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support.

The new rule, expected to be promulgated by the end of this year, is intended to bring improved regulatory certainty to the regulated community. Until then, the agencies will implement pre-2015 Rule informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.

KMCL attorneys have been deeply involved in the WOTUS rule litigation and welcome any questions about the effect of this repeal on any specific industries or situations.