KMK Law Real Estate Blog

On October 22, 2019, the U.S. Army Corps of Engineers (Corps) and U.S. Environmental Protection Agency (EPA) published their final rule repealing the 2015 “Waters of the United States” (WOTUS) rule.  The repeal will be effective on December 23, 2019.  The breadth of the WOTUS rule affects which water bodies and wetlands are subject to pollution protection under the federal Clean Water Act.  In late 2018, EPA and the Corps issued a proposed WOTUS rule to narrow the definition of WOTUS, and solicited public comment.  The new WOTUS rule is not expected to be finalized until 2020, and is likely to be challenged in the courts.

Until EPA and the Corps issue a new WOTUS rule, determinations of what constitutes WOTUS will be based on a 1986 WOTUS rule and 2008 EPA guidance documents.  The 1986 WOTUS rule gave rise to much litigation, and ultimately to the 2006 U.S. Supreme Court decision in Rapanos v. United States, in a fractured opinion, that was critical of the EPA and Corps of Engineers for not developing a clearer WOTUS rule.  The 2008 guidance document served as an interim measure after the Rapanos decision until a new WOTUS rule could be adopted to address the concerns under Rapanos.  However, the adoption of the 2015 WOTUS rule gave rise to a multitude of legal challenges, the consequence of which was the 2015 WOTUS rule was effective in about one half the states and was not effective in the remaining states.

The EPA’s and Corps’ repeal of the 2015 WOTUS rule is already subject to legal challenges by various entities, including farming and environmental groups.  In addition, various regulatory decisions involving WOTUS made by EPA and the Corps prior to issuance of the new WOTUS rule are likely to be challenged, much as they were prior to the 2015 WOTUS rule.  Stay tuned for further developments.