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Counties had consistently advocated for the 2015 WOTUS rule to be withdrawn and rewritten.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.”
Concurrently with repealing the 2015 WOTUS rule, EPA has been drafting a new WOTUS definition. In February 2019, EPA and the Army Corp released the Trump Administration’s proposed new WOTUS definition. In response to the proposed definition, in April 2019, NACo submitted two sets of comment letters. The first letter, with the National League of Cities and the U.S. Conference of Mayors, highlighted the opportunities and challenges that counties, cities and mayors potentially face. The second letter was exclusively focused on counties and went into greater detail on how the rule could potentially impact county-owned infrastructure. It also offered recommendations to the agencies.
The agencies are expected to release a final rule in 2020. As with the 2015-WOTUS regulation, numerous lawsuits are expected to be filed.
The term WOTUS has been around since 1899 when it was added to the Rivers and Harbors Act, which is the initial authority for the U.S. Army Corps of Engineers (Army Corps) permit program in “navigable” waters. In 1972, WOTUS was added to the Clean Water Act (CWA) to differentiate which waters fall under federal versus state authority. Since its inclusion in the Act, the definition has been redefined several times. In the 2000’s, the U.S. Supreme Court decided two WOTUS related cases which caused further confusion about the scope of WOTUS in the field. As a result, more counties and other stakeholders had to obtain CWA Section 404 permits for some construction and maintenance projects, which can be costly, time-consuming and complex.
Consequently, in June 2015, the Obama Administration finalized a controversial new definition for WOTUS. NACo expressed concerns about the final rule because it would increase federal jurisdiction over road, bridges, flood control channels and ditch construction and maintenance projects. Almost immediately after the rule was finalized, numerous lawsuits were filed in the district and appeals courts.
Due to several federal court decisions, the nation is currently under two separate WOTUS rules. Twenty-two states are under the 2015 WOTUS rule and 27 states follow the 1986 WOTUS definitions. It is unclear which rule applies in New Mexico after a federal court issued an injunction against the 2015 rule and continued litigation activity.