Does WOTUS Still Mean Woe Is Us?
On September 12, 2019, the Trump administration issued a final rule repealing the Obama 2015 “Waters of the US” (WOTUS) rule, which defined the scope of “waters” protected under the federal Clean Water Act (CWA). This is the Trump administration’s Step One in revising the WOTUS rule. The repeal is effective 60 days from its publication in the Federal Register.
The administration’s rationale for the repeal is that the 2015 rule overly expanded federal regulatory power under the Clean Water Act and the Commerce Clause, failed to adequately consider states’ rights, and suffered from procedural errors and lack of record support. The administration has specifically pointed to what it considers to be misinterpretations of the “significant nexus” concept derived from case law and the broadening of the “tributary” and “adjacency” concepts to include isolated waters and specific linear distances as issues to address with a new WOTUS rule. Although wetland jurisdiction is a hot issue that has grabbed public attention for years, the WOTUS rule affects more than wetland regulation under the CWA; it affects other CWA programs such as spill reporting and water pollution control as well.
Step Two of the administration’s plan will be to replace the 2015 rule with a new rule that redefines WOTUS in a way that limits federal jurisdiction. See 84 Fed. Reg. 4174 (2019). Until a new WOTUS rule replaces the 2015 rule, however, the CWA’s 1980 rules at 33 CFR and 40 CFR will be resurrected. Those rules arguably did not define WOTUS as broadly as the 2015 rule, but the Environmental Protection Agency and the US Army Corps of Engineers still pushed the envelope even then, aided by those agencies’ broad 2008 guidance documents interpreting Rapanos’ “significant nexus” test, which apparently remains in effect. This guidance is referenced several times in the rule-making preamble. So there may be no discernible difference in the status quo, especially in the 27 states in which the 2015 rule is enjoined. (The 2015 rule is presently in effect in only 22 states. New Mexico’s status is uncertain.) In theory, the repeal of the 2015 rule may moot those cases, but litigation is expected to continue over whichever WOTUS rules remain in place (or are enacted).
What should wetland permit applicants do in the meantime? The preamble of the Step One rule says if they have final jurisdictional determinations already, they may keep them or seek a new determination. However, with the 2008 Rapanos Guidance in effect when the repeal becomes effective, there could be no substantial difference between the 1980 rules and the 2015 rules until a new rule is finalized in the future.