The Nickel Report

Which Waters of the US (WOTUS) rule applies to my project? For four years, that has been a recurring question with a complicated, ever-changing answer. The 2015 WOTUS Rule promulgated by the Obama administration was challenged almost immediately, and, because of various district court injunctions, only 22 states are operating under the 2015 WOTUS Rule, while 27 states are subject to the pre-2015 Rule regime; the status of the rule in New Mexico is unclear. Yesterday, EPA and the US Army Corps of Engineers (together, the Agencies) signed a pre-publication version of the highly anticipated repeal of the 2015 WOTUS Rule, which will place the entire country under the pre-2015 Rule regime while the Trump administration works to complete its replacement WOTUS definition.

In the final repeal rule, the Agencies conclude that the 2015 Rule exceeded the scope of the Agencies’ statutory authority under the Clean Water Act (CWA), failed to properly account for the primary responsibility and rights of states with respect to land and water resources, and included provisions (i.e., distance limits for adjacent waters) that were arbitrary and capricious. These conclusions are supported by two recent district court decisions finding the 2015 WOTUS Rule unlawful. The US District Courts for the Southern District of Texas and Southern District of Georgia both found there were procedural errors with the 2015 WOTUS Rule. The Georgia court found that the 2015 Rule exceeds the Agencies’ CWA authority and thus is not a permissible construction of the term “WOTUS” within the meaning of the statute. Both courts issued orders remanding the 2015 Rule back to the Agencies.

The repeal rule is expected to be published in the Federal Register in the next week or so and will become effective 60 days after its publication. Upon the effective date, the Agencies will administer the regulations defining WOTUS from 1986 and 1988, as informed by applicable agency guidance documents (e.g., the 2008 Rapanos Guidance) and consistent with Supreme Court decisions and longstanding practice. The Agencies state in the repeal rule that, although pre-existing regulations “pose certain implementation challenges,” the Agencies find restoring the prior regulations is preferable to maintaining the 2015 Rule. EPA Administrator Wheeler stated yesterday that the Agencies are targeting late 2019 for a final rule with a new, replacement WOTUS definition.

The repeal brings to an end the patchwork of WOTUS regulation in place across the country and provides greater certainty and clarity for regulated entities, regulators and the public as to the applicable definition of WOTUS. Challenges to the repeal rule are likely. For now, projects will be permitted under the familiar, if imperfect, pre-2015 WOTUS regime.