EPA Proposes Reinstating Pre-2015 WOTUS Rule Pending Rewrite
Last week, the Environmental Protection Agency (EPA) proposed to reinstate the federal definition of “waters of the United States” (WOTUS) that was in place before 2015. This is the latest development in a long line of changes, rewrites and legal challenges surrounding the definition of WOTUS. Both the Obama and Trump administrations attempted to rewrite WOTUS, but were rebuffed by the courts. Prior to President Obama’s WOTUS rewrite in 2015, the WOTUS rule in place had then allowed for more certainty and clarity about what the federal government’s jurisdiction was regarding waterways around the nation such as rivers, streams, lakes, bays and other features. Since 2015, there has been a lot of turmoil and confusion about the definition of WOTUS, where it’s applied and how.
This latest proposal, while attempting to reinstate the pre-2015 WOTUS scheme and a welcome update supported by NRMCA, also states that EPA’s approach “would support a stable implementation of 'waters of the United States' while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.” This future regulatory action is already underway as EPA is currently working toward scheduling stakeholder meetings across the nation throughout December and January to gather information on what a new WOTUS definition should look like. While not as narrow as the Trump WOTUS definition, the pre-2015 rule is much more preferrable to the overly broad Obama 2015 rule.
EPA is accepting comments on the proposal for 60 days following its publication in the Federal Register. NRMCA will be filing comments in support of reinstating the 2015 WOTUS definition and its retention.