Final Rule Repeals WOTUS

On Thursday, September 12, 2019, the Environmental Protection Agency and the Department of the Army released a final rule to repeal the embattled 2015 Clean Water Rule, also known as WOTUS. The repeal will be effective 60 days after the rule’s publication in the Federal Register.

This repeal finalizes step one of a two-step process the Trump administration began in 2017 to replace the 2015 Rule, which has been the subject of court challenges since its inception. Step two will be to finalize the replacement rule. Last December, the agencies released a proposed replacement rule, which has generated approximately 620,000 comments. It is expected that they will finalize the replacement rule in the near future.

The rule repealing the 2015 Rule “recodifies” pre-2015 “waters of the United States” regulations until such time as the replacement rule is finalized. This means that the agencies will again apply pre-2015 guidance, informed by U.S. Supreme Court decisions, on a nationwide basis. Because of ongoing litigation, more than half the states never were subject to the 2015 Rule. Pre-2015 rules remained in place because court injunctions blocked the enforcement of WOTUS. Twenty-two states, however, were subject to the 2015 Rule, establishing a patchwork system where landowners were treated differently depending upon the state in which they lived. The repeal of WOTUS means that all U.S. landowners will again be subject to the same rule.

On August 21, 2019, the United States District Court for the Southern District of Georgia became the second federal court to rule that the 2015 Rule was improperly issued. On May 28, 2019, the United States District Court for the Southern District of Texas determined that the agencies violated the Administrative Procedure Act (APA) when they promulgated the 2015 Rule. Rather than vacate the rule, the courts remanded it to the agencies for further action.

In the September 12 press release accompanying the release of the final repeal rule, the agencies acknowledged these cases and stated that “multiple other federal district courts have preliminarily enjoined the 2015 Rule pending a decision on the merits.” “EPA and the Army jointly conclude that multiple substantive and procedural errors warrant a repeal of the 2015 Rule.” Specifically, the press release states that the 2015 Rule:

• Did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases.
• Failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources.
• Approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress.
• Suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 Rule’s distance-based limitations.

Although the repeal of the 2015 Rule renders moot litigation challenging its legality, environmental groups have promised to fight the new rule in court.

We will be watching.