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On October 22, 2019, the U.S. Environmental Protection Agency (EPA) along with the U.S. Army Corps of Engineers, published a final rule to repeal the 2015 Rule that expanded the definition of "Waters of the U.S." (WOTUS). The 2015 Rule enhanced which waterways are subject to federal regulation, and the repeal of this rule (effective December 23, 2019) will restore the regulatory text that existed prior to the 2015 Rule.

In announcing the final rule, EPA and the Army (“the agencies”) stated the following four primary reasons for the 2015 Rule Repeal.

  1. The 2015 Rule adopted an interpretation of the significant nexus standard that impermissibly expanded the scope of federal jurisdiction, resulting in the regulation of waters beyond what Congress intended.
  2. The agencies conclude that in promulgating the 2015 Rule, the agencies failed to adequately consider and accord due weight to the policy of the Congress in the Clean Water Act (CWA) section 101(b) 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."
  3. The agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachment of federal jurisdiction over traditional State land-use planning authority.
  4. The agencies conclude that the 2015 Rule's distance-based limitations suffered from certain procedural errors, and a lack of adequate record support.

The final rule completes the objectives stated by EPA Administrator, Andrew Wheeler, and Department of the Army Assistant Secretary of the Army for Civil Works, R.D. James, who previously announced that "EPA and the Department of the Army finalized a rule to repeal the previous administration's overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed." This final rule fulfills the first step in what the agencies have said is a two-step process to rescind and revise the 2015 Rule. The second step in the process is to provide a new WOTUS definition.

Trinity Consultants has been following the WOTUS Rulemaking closely, and providing timely information in previous articles posted December 14, 2018, February 26, 2019 and September 26, 2019. If you have questions about how this final ruling may affect water permitting at your facility, please contact your local Trinity office at (800) 229-6655.