By Andrew H. PerellisRebecca A. Davis, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published its final rule this week to repeal the 2015 rule that “impermissibly expanded the definition of ‘waters of the United States’ (WOTUS)” under the Clean Water Act.  84 Fed. Reg. 56626 (Oct. 22, 2019).

The WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments in the Agency record.

We have previously blogged on the WOTUS rulemaking. See EPA and Corps of Engineers Propose New “Waters of the United States” Definition, EPA and Corps Add Years to “Effective” Applicability Date of WOTUS Rule, Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water ActProposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The intention is that this final rule will repeal the 2015 Rule and restore the previous regulatory regime exactly how it existed prior to finalization of the 2015 Rule.

The final rule completes the objectives stated by  EPA Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works, R.D. James, who previously announced that “EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed.”  “[This] Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

As we had blogged about in December 2018, EPA and the Army proposed a new definition—Step 2—that would “clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent.”  The proposal provides a “clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.”

This final rule takes effect on December 23, 2019.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.