Waters of the US News Alert

News Alert

September 13, 2019 – Washington, D.C.

We are going back to the 1980s… The EPA has formally repealed the 2015 Clean Water Rule!

On September 12, 2019 EPA Administrator, Andrew R. Wheeler signed the final rule on, with signature by Mr. R.D. James, Assistant Secretary of the Army for Civil Works finalizing the repeal of the Obama Era Clean water Rule.  This is the final step of the rule-making process that started several years ago.  There is no public comment period as the draft version of this rule was vetted through the review process last year.  The official publication date of the rule pending its appearance in the Federal Register which is anticipated in a week or so.  Once the rule is published in the Federal Register it will be effective 60 days from then.

“The agencies are repealing the 2015 Rule for four primary reasons. First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos. Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b). Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jursidiction (sp) over traditional State land-use planning authority. Lastly, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule.” (USEPA, 2019).

The Swamp School has obtained a copy of the prepublication rule that you may download HERE.  The EPA Docket ID No. for this regulation is:  EPA-HQ-OW-2017-0203 and can be found at regulations.gov.

The net effect of this rule will be to nullify the 2015 Clean Water Rule.  This will result in one Waters of the US definition to be used nationwide.  This will mean that the states currently using this definition will revert to the pre-2015 definition that includes the 1986 published definition of a waters of the US.

The Trump Administration has published a draft waters of the US definition of its own that is currently undergoing agency review of the public comments.  The Administration has stated that the new regulation will be finalized before the end of the year.  In the meantime, its back to the 80’s.

The prepublication rule listed above is 172 pages long! You are free to review it or take our brand new on-demand webinar – the [NEW] Waters of the US on October 16, 2019 and let the Swamp School walk you through all the new changes and important points before they go into effect. Click the button below to learn more and register for this important webinar.

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