In the October 22, 2019 Federal Register, the Environmental Protection Agency (EPA) and the Department of the Army published a final rule repealing the 2015 Clean Water Rule: Definition of “Waters of the United States” (2015 Rule) and restoring the regulatory text that existed prior to the 2015 Rule. This rule will go into effect on December 23, 2019.
The effect of this rulemaking action is a return to the 1986 standards for defining waters of the United States (WOTUS). These standards are currently in effect in over half of the states while the 2015 rule applied in 22 states, the District of Columbia, and the U.S. territories. The EPA is currently in the process of reviewing comments and plans to finalize a revised definition of WOTUS to replace the 1986 standards in the next few months.
This rulemaking action comes almost two years after President Trump issued Executive Order 13778 – directing the EPA to review the 2015 Rule and to interpret the term “navigable waters,” as defined in the Clean Water Act (CWA), in a manner consistent with the opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, Justice Scalia wrote that the term WOTUS can only refer to “relatively permanent, standing or flowing bodies of water,” not “occasional,” “intermittent,” or “ephemeral” flows. Additionally, Justice Scalia found that mere “hydrological connection” is not sufficient to qualify a wetland as covered by the CWA; it must have a “continuous surface connection” with a water of the United States that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
EPA and Department of the Army Final Rule, Definition of “Waters of the United States”-Recodification of Pre-Existing Rules (Oct. 22, 2019) https://www.federalregister.gov/documents/2019/10/22/2019-20550/definition-of-waters-of-the-united-states-recodification-of-pre-existing-rules