The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers on Sept. 12 announced the formal repeal of a 2015 rule that expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.
Under the Obama administration’s 2015 WOTUS rule, EPA’s jurisdiction was expanded over the nation’s bodies of water, leading agricultural and business groups to criticize the agency for federal overreach. President Trump issued an executive order early in his presidency directing EPA to create a new rule using as a model the late Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case, which resulted in a split decision by the Supreme Court. In his dissenting opinion, Scalia argued that the law should apply only to “navigable waters.”
In this week’s announcement, EPA and the U.S. Army Corps said they are “recodifying the longstanding and familiar regulatory text that existed prior to the 2015 Rule – ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States.”
Court rulings have put the 2015 WOTUS rule on hold in 28 states, but it still is in effect in 22. With its formal repeal, the administration will implement the pre-2015 regulations. The agencies’ new WOTUS rule is expected to be published by the end of the year or early in 2020.