EPA’s and the Army Corps’ 2015 promulgation of a revised definition of “waters of the United States” (WOTUS) was met with an executive order and extensive legal challenges questioning the definition’s lawfulness (with which KMCL has been involved).  The Agencies thus commenced a lengthy process to rescind and replace that rule.  One piece of that effort is a proposed replacement rule, which was finally published in the Federal Register on February 14, 2019.  See 84 Fed. Reg. 4154 (Feb. 14, 2019).  Public comments on the proposed replacement rule are due on April 15, 2019.

Given the difficulties associated with the 2015 rule, the current proposal is the Agencies’ attempt to define WOTUS in a way that withstands judicial scrutiny and accomplishes the goals articulated in the executive order.  EPA explains its proposal is to federally regulate “traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters.”  Seehttps://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition.  The definition would exclude “features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.”  Id.  However, embedded within those general outlines are myriad nuances, some familiar to the regulated community and some new, that both expand and contract the common meanings of the terms used.

The regulated community should evaluate the rule and seek counsel on its potential impacts in particular circumstances.  To inform those evaluations, additional information on the backdrop of the proposal follows:

Issues with the 2015 WOTUS rule became most apparent when the Court of Appeals for the Sixth Circuit stayed the rule nationwide on October 9, 2015.  The court found the petitioners had shown the rule likely conflicted with portions of the Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006) and the rule’s distance limits were likely promulgated without proper notice and comment.  (The Supreme Court later vacated the Sixth Circuit decision on jurisdictional grounds.)

Then, on February 28, 2017, the President signed the “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The Order instructed the Agencies to review the 2015 WOTUS rule and determine whether it accomplished the goals of keeping waterways free from pollution, promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the Constitutional roles of the Congress and the States.

This led to nationwide litigation and rulemaking efforts proceeding in parallel.  For example, on July 27, 2017, the Agencies published a proposed rule to repeal the 2015 WOTUS rule.  On February 6, 2018, the Agencies published a rule to add an applicability date of February 6, 2020, to the 2015 WOTUS rule, which would have operated to stay the Agencies’ enforcement of the 2015 WOTUS rule in all states until 2020.  While that broad stay effort failed when it was vacated by two district courts, three district courts have preliminarily enjoined the 2015 rule, which precludes enforcement of the rule in the corresponding plaintiff states.

This rich and disjointed history must be considered when evaluating the potential implications of the new proposed WOTUS rule.  KMCL’s Jennifer Simon has been particularly involved in these matters. 

Please contact Jennifer at jsimon@kmcllaw.com or 404-812-0126) or another KMCL lawyer with any questions or for further information.