Waters of the U.S. (WOTUS) Update

The EPA and Army Corps of Engineers utilize the Waters of the United States (WOTUS) definition to determine what waters are jurisdiction of the United States under the Clean Water Act (CWA). On August 16, South Carolina Federal District Court Judge David Norton issued an order which reinstated the 2015 rule that updated the WOTUS definition. The EPA, under the Trump administration, had amended the 2015 rule to delay the applicability date until 2020.

Judge Norton ruled that the Trump administration failed to comply with rulemaking requirements under the Administrative Procedure Act in suspending the implementation of the new rule that was adopted under the Obama administration. Specifically, Norton said the government provided no “reasoned analysis” for delaying the effective date of the rule and no “meaningful opportunity” for public comment.

Image credit: NAHBnow.com

To complicate matters, on Sept. 12, the U.S. District Court for Southern Texas issued a temporary injunction against the 2015 rule in Texas, Mississippi and Louisiana. Following the Texas injunction on Sept. 18, an additional state was added to this existing preliminary injunction in the U.S. District Court for North Dakota. Currently, the 2015 rule applies to 22 states, with the 1986 definition applicable in 28 states.

Confused as to which WOTUS rule applies in your area? See the map to the right, courtesy of NAHBNow.

 Light at the end of the tunnel

The EPA says it’s on track to issue a final rule, replacing the 2015 WOTUS rule, by September 2019, but don’t get your hopes up. In the latest semiannual regulatory agenda released by the federal government during the week of October 18, the EPA estimates it will publish a proposed replacement rule by the end of this month. However, rulemaking wheels turn slowly which will make it difficult for the EPA to meet the Sept. 2019 target date.

Stream + Wetlands Foundation continues to monitor all activities surrounding the WOTUS ruling. We are hopeful a reasonable WOTUS definition can be achieved soon to help improve predictability for permit applicants and the regulatory agencies.