On September 12, 2019, the U.S. Environmental Protection Agency (EPA) announced that along with the U.S. Army Corp of Engineers, they are repealing a 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 will restore the regulatory text that existed prior to the 2015 Rule.

The Clean Water Act (CWA) requires landowners to obtain federal permits before discharging pollutants into navigable waterways, such as rivers and lakes. Arguments have long persisted over what other waters are subject to regulation. In particular, wetlands that don't have a direct connection to those larger waters, and small headwater streams and channels that flow only during and after rainfall. The question of which waters are covered under the Clean Water Act has created decades of lawsuits and numerous bills in Congress. In 2006, the Supreme Court produced three differing opinions, leading the previous administration to write the 2015 rule. This Rule provided federal oversight to upstream tributaries and headwaters, including wetlands, ponds, lakes and streams that can affect the quality of navigable waters.

The regulation drew quick legal challenges from 31 states and numerous court rulings blocked its implementation in some states. Before the September 12, 2019 announcement, the 2015 Rule was effective in 22 states, Washington, D.C., and U.S. territories.

The repealing of the 2015 Rule is 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. The final repeal rule will go into effect 60 days after publication in the Federal Register; ending the regulatory patchwork of which definition of WOTUS is valid in each of the states.

Trinity Consultants has been following the WOTUS Rulemaking closely. You can read our previous articles from December 14, 2018 and February 26, 2019. If you have questions about how this Rule repeal may affect water permitting at your facility, please contact your local Trinity office at (800) 229-6655.