Published in September 2019 Focus on the Environment Newsletter
On September 12, 2019, the U.S. Army Corps of Engineers (USACE) and the U.S. EPA (EPA) released a new rule that will repeal the Obama-era 2015 Waters of the United States (WOTUS) rule. This is “Step 1” of the repeal and replace promise made by the Trump administration.
Currently, the 2015 WOTUS rule applies in 22 states, the District of Columbia, and U.S. territories. The pre-2015 rules and guidance apply to the other 28 states. The result of the repeal will be to restore the pre-2015 authority, limitations, and guidance in all 50 states and territories. The pre-2015 guidance is in accordance with the Supreme Court’s opinion that a “significant nexus” must exist between wetlands and tributaries to navigable waters for the Clean Water Act to apply. The 2015 WOTUS rule was enacted to better define waters that had a “significant nexus”, and the 2015 rule has been the subject of numerous court cases since its promulgation.
At the time of this article, the rule repealing the 2015 rule has not been published in the Federal Register. The repeal will take effect 60 days following the publication of the rule in the Federal Register (Docket No. EPA-HQ-OW-2017-0203). It should be noted, however, that the pre-2015 rules and guidance will apply until the EPA and USACE finalize the WOTUS replacement rule (Step 2), the redefinition of WOTUS, that was proposed in February 2019. It is expected that the final replacement rule will be released in early 2020, after the agencies respond to the comments regarding the proposed redefinition rule that were received last spring.
Based on the contentiousness of this topic, it is unlikely that the court cases regarding the scope of the Clean Water Act will end following the enactment of the redefined WOTUS rule.
Steve Williamson is a Senior Scientist with Cox-Colvin & Associates, Inc. He holds a BS degree in Environmental Health and an MS degree in Hydrogeology from Wright State University. Mr. Williamson has over 30 years' experience working on brownfields, solid and hazardous waste, and groundwater contamination projects in Ohio and the Midwest.