EPA, Corps of Engineers finalize 2015 WOTUS repeal
On Sept. 12, the U.S. Environmental Protection Agency (EPA) and the Department of the Army finalized repeal of the 2015 “Waters of the United States” (WOTUS) rule. The agencies are also reinstating the regulatory text that existed prior to the 2015 rule—ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States.
Georgia Farm Bureau has opposed the 2015 rule since it was proposed, maintaining that it constituted regulatory overreach and deviated from two Supreme Court rulings.
The repeal is the first step in a two-step rulemaking process to define the scope of “waters of the United States” that are regulated under the Clean Water Act. Step 1 provides regulatory certainty for the definition of “waters of the United States” following years of litigation surrounding the 2015 Rule. Two federal district courts, including the U.S. District Court for the Southern District of Georgia, that have reviewed the merits of the 2015 Rule and found that the rule suffered from certain errors. The courts issued orders remanding the 2015 Rule back to the EPA and the Corps of Engineers.
Multiple other federal district courts had preliminarily enjoined the 2015 rule pending a decision on the merits of the rule. In this action, EPA and the Army jointly concluded that multiple substantive and procedural errors warrant a repeal of the 2015 rule.
The EPA and Corps indicated they will implement the pre-2015 regulations currently in place in more than half of the states, using applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice. The final rule takes effect 60 days after publication in the Federal Register.
In December 2018, EPA and the Army proposed a new definition—Step 2—that would clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent. In the proposal, the agencies provide a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.
For more information visit www.epa.gov/wotus-rule.