Trump Administration Publishes Final WOTUS Repeal
 
On October 22, the Trump Administration released the final rule repealing the 2015 “Waters of the United States” rule. The final rule will go into effect on December 23, 2019.
 
The 2015 rule was implemented by the Obama Administration and had been blocked by courts in 27 states, while being in effect in 22 states. The rule released last week will put all 50 states back under regulations that had been in place since 1986 which was interpreted by guidance written by the Bush Administration in 2008. In February 2017, President Trump signed an executive order directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to align its regulations with the views of late Supreme Court Justice Antonin Scalia. Scalia argued that the Clean Water Act (CWA) only applied to waterways with “relatively permanent” surface water connections to navigable waters.
 

The two previous administrations based their regulations on an opinion from former Justice Anthony Kennedy, stating that CWA regulations apply to waters with a “significant nexus” to navigable waters. Such a nexus could include chemical, biological, or hydrological connections. The final rule will eliminate protections for streams that flow only after rainfall or snowmelt, and protections for wetlands without surface water connections to larger waterways will also be removed. Environmental groups are already challenging the rule in court. 11 groups, including the National Wildlife Federation and the Natural Resources Defense Council, filed a suit in the U.S. District Court for the District of South Carolina. The lawsuit alleges that the new rule is legally flawed, violating both the Administrative Procedure Act and the Constitution’s due process clause, which, the lawsuit says, “requires rulemakings to be undertaken with an open mind.” In a separate case a lawsuit was filed on behalf of the New Mexico Cattle Growers’ Association. The lawsuit challenges the recodification of the pre-2015 WOTUS definition on the grounds that such an action was not open to public comment and was not submitted to Congress for review under the Congressional Review Act. 

APWA submitted comments to EPA on the proposed rule earlier this year, showing appreciation for the clarity the revised definition provides in terms of ditches and municipal separate storm sewer systems (MS4’s). However, APWA expressed serious concerns regarding the revised definition and assumptions made in the proposed rule, which are still valid with the new final rule. In three key areas, the new proposed rule could do serious harm to public works professionals and programs:
  • Continued permitting uncertainty;
  • Assumptions regarding cooperative federalism; and
  • Additional costs for water providers and water customers.
 
For more information on the new WOTUS rule, please contact APWA Government Affairs Manager Sean Garcia.