On September 12, 2019, The U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers jointly announced that the agencies are repealing a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA).
The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 Rule—ending a regulatory patchwork that required implementing two competing CWA regulations, which has created regulatory uncertainty to real estate developers across the United States.
Last week’s repeal announcement marked the first in a two-step rulemaking process to define the scope of WOTUS that are regulated under CWA. Step 1 provides regulatory certainty as to the definition of WOTUS following years of litigation surrounding the 2015 Rule. In December 2018, the agencies signed a proposed rule revising the WOTUS definition to clarify federal authority under the CWA. The proposed definition would replace the approach in the 2015 Rule and the pre-2015 regulations. The proposed definition – on which ICSC submitted largely supportive comments – is expected to be finalized in late 2019 or early 2020.
Environmental groups and some state attorneys general have already vowed to challenge the repeal. However, two federal district courts that have reviewed the merits of the 2015 Rule found the rule legally deficient and issued orders remanding the rule back to the agencies. These and other courts have also enjoined the 2015 Rule from taking effect in a majority of the country, with a shifting patchwork of decisions adding to the regulatory uncertainty associated with the Obama Administration’s WOTUS definition.
On September 18, EPA Assistant Administrator for the Office of Water David Ross was called to testify before the House Transportation and Infrastructure Subcommittee on Water Resources and Environment for a hearing on the Trump Administration’s priorities and policy initiatives under the CWA. He sparred with committee Democrats over the scope of the proposed WOTUS rule; Committee Chairman Peter DeFazio (D-OR) asserted “the Trump administration is leading a campaign to dismantle our nation’s Clean Water Act.” Administrator Ross continuously emphasized that the 2015 Obama-era WOTUS rule suffered from procedural errors and did not implement the legal limits on the scope of the agencies’ authority under the CWA as intended by Congress and reflected in Supreme Court cases.
Abby Jagoda
Vice President, Public Policy