The revised rule governing the “Water of the United States” definition – effectively establishing the scope of federal environmental regulations – has been published as final, to take effect in 60 days.
Counties across the country had raised concerns that a 2015 proposed EPA rule would expand the scope of federal regulation far beyond navigable waterways, and potentially affecting waterways as small as agricultural drainage ditches. A 2019 proposed revision had been subject to public comment in recent months, and was published in the federal register last week.
On September 12, the Trump Administration released a final rule to repeal the 2015 “Waters of the U.S.” (WOTUS) definition and reinstate the pre-2015 WOTUS definition from 1986. The rule will become effective 60 days after its publication in the Federal Register, which is expected in the coming weeks. The announcement marks the first step of a two-step process to repeal and replace 2015 WOTUS with a revised rule, which is expected to be finalized in 2020.
Counties had consistently advocated for the 2015 WOTUS rule to be withdrawn and rewritten. In a press release, NACo CEO/Executive Director Matthew Chase said: “We appreciate the administration’s efforts to clarify the ‘Waters of the U.S.’ definition. Over the years, an unclear definition has resulted in confusion, inconsistencies and costs, inhibiting essential infrastructure upgrades and causing delays, unnecessary red tape and lawsuits.”
According to NACo staff, it appears likely that the rule may again be subject to lawsuits, and its application may be held up as a result. Whether that effect would be nationwide, or variable by federal court district (as is currently the case following litigation in federal courts), is not yet clear.
See previous Conduit Street coverage, “NACo Urges Counties to Comment on New WOTUS Rule.“