EPA and Army Sign Final Rule Repealing WOTUS Definition

During an event at the the National Association of Manufacturers (NAM) Headquarters in Washington, DC on Thursday, September 12, 2019, Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works, R.D. James announced that their agencies are publishing a final rule to repeal the 2015 Clean Water Rule: "Definition of Waters of the United States" (WOTUS). The 2015 Rule was published in the Federal Register on June 29, 2015 and became effective on August 28, 2015 (80 FR 37054).

The 2015 Rule expanded the WOTUS definition of navigable waters to include adjacent wetlands as "inseparably bound up" and waters "not navigable in the traditional sense". Litigation followed with 31 states and 53 non-state parties filing complaints and petitions for review in federal district and appellate courts. As a result, the 2015 Rule is currently in effect in 22 states, the District of Columbia, and U.S. Territories. The pre-2015 regulations prevail in the remaining 28 states.

The agencies received approximately 770,000 public comments from interested parties in response to a July 27, 2017 notice of proposed rulemaking (NPRM) and  July 12, 2018 supplemental notice of proposed rulemaking (SNPRM), before concluding that the 2015 Rule exceeded the agencies' authority under the Clean Water Act (CWA).

EPA Administrator, Andrew Wheeler signed a prepublication version of the rule in front of Army Assistant Secretary, R.D.James who had previously signed the document on September 5, 2019. With this final rule, the regulations defining the scope of federal CWA jurisdiction will be those portions of the Code of Federal Regulations (CFR) as they existed before the amendments promulgated in the 2015 Rule.

The final rule will be effective 60 days after publication in the Federal Register.