The zombie WOTUS rule is dead! Struck down by a final blow that’s been a long time coming.
On the afternoon of Sept. 12, Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced they had signed the final rule to repeal the 2015 Waters of the U.S. (WOTUS) rule, also called the Clean Water Rule.
Though not a surprise—the agencies proposed the repeal of the 2015 WOTUS rule back in Sept. 2017 following an executive order by President Donald Trump—the actual announcement of its repeal marks the end of the rule’s long and storied history. Probably.
“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” said Wheeler in the official announcement released following the signing of the final rule.
“Before this final rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 Rule,” said James in the announcement.
“This final rule reestablishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 Rule, which is more familiar to the agencies, states, Tribes, local governments, regulated entities, and the public while the agencies engage in a second rulemaking to revise the definition of ‘waters of the United States.’”
Ranching and farming industry groups—including the USDA, with Secretary Sonny Perdue calling the repeal “a major win for American agriculture”—unsurprisingly praised the announcement.
“After years spent fighting the 2015 WOTUS Rule in the halls of Congress, in the courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over,” said National Cattlemen’s Beef Association President Jennifer Houston. She additionally thanked the Trump administration and praised U.S. ranchers for their dedication to proper stewardship of the nation’s resources.
United States Cattlemen’s Association President Kenny Graner had much the same to say in his group’s statement.
“USCA applauds the Trump administration for rectifying this gross regulatory overreach and rolling back the 2015 WOTUS Rule. America’s farming and ranching families produce the safest, most bountiful food supply in the world, and we owe it to our careful stewardship of the land.”
American Sheep Industry Association President Benny Cox expressed appreciation and looked forward to a future without the 2015 WOTUS rule.
“America’s sheep producers are strong advocates for clean water and the responsible use of our natural resources,” Cox said in the group’s response. “We look forward to working with EPA to help craft a rule that will enhance those resources while recognizing and protecting the rights of landowners and states.”
The new WOTUS rule
“This repeal of the WOTUS rule means that the 2015 Obama-era WOTUS rule is erased from the Code of Federal Regulations,” explained Scott Yager, general counsel for NCBA, during a recent edition of the group’s Beltway Beef podcast.
He cheered the repeal, announcing, “We have destroyed the zombie WOTUS.”
“That means this regulatory patchwork that we’ve been living under in this country all goes back to the pre-WOTUS rules. While that’s better than having WOTUS in place, it’s not as good as having a new rule in place that provides the proper limitations to federal jurisdiction and provides clarity to our producers in determining what is and what is not a waters of the U.S.”
A replacement WOTUS rule has been underway for almost a year now. The EPA announced a revised version back on Dec. 11, 2018 and agricultural industry groups called it “the Christmas present of a lifetime.”
The new WOTUS rule, as proposed, would get rid of the “significant nexus” requirement of the 2015 WOTUS rule, and instead outlines specifically what is and what is not a water of the U.S. under the jurisdiction of the Clean Water Act (CWA).
It proposes six classifications of jurisdictional waters: traditional navigable waters; tributaries that flow directly into traditional navigable waters; ditches that are either of the first two categories, or if they were built adjacent to a wetland; lakes and ponds that either are traditional navigable waters, perennially contribute to the flow of a traditional navigable water, or are flooded by a waters of the U.S. in a typical year; wetlands that physically touch or flow between other jurisdictional waters; and impoundments of a waters of the U.S.
The proposed new WOTUS rule also lays out what types of waters are categorically excluded from CWA jurisdiction, including: groundwater; ephemeral water features; ditches not meeting the above ditch description, and including agricultural ditches; agricultural land; artificial lakes and ponds such as farm or stock ponds; and stormwater and wastewater features.
“We commented on it, we support it, and we also have specific recommendations to improve that replacement proposal,” commented Yager, who added that they expect the replacement to be finalized by the end of the year.
A likely fight ahead
Though the signing of the final rule repeal happened Sept. 12, it will not take effect until 60 days after the final rule is published in the Federal Register. As of press time Sept. 19, that had not happened. This means the repeal will not take effect until mid-November at the earliest.
Once the final rule repealing the 2015 WOTUS rule is published in the Federal Register, it can be challenged in court. The rule’s past history suggests this is very likely, and several environmental groups have already vowed to fight it at “every step.”
In a joint response from Center for Biological Diversity and Waterkeeper Alliance, the groups characterized the repeal as “the destruction of millions of acres of wetlands” at the request of “special-interest polluters,” predicted the disappearance of wetlands and destruction of the nation’s rivers, and claimed it would “accelerate the extinction of more than 75 endangered species.”
“EPA is misleading the public by claiming that this regulation simply repeals the 2015 Clean Water Rule,” said Kelly Foster, a Waterkeeper Alliance senior attorney, in the groups’ response.
“The truth is that this is an illegal attempt to reinterpret the prior longstanding regulatory definition to eliminate anti-pollution requirements for rivers, streams, wetlands and other waters that have been in place since the 1970s.”
“This administration has shown nothing but disdain for America’s natural heritage and the wildlife we cherish,” added Brett Hartl, government affairs director at the Center for Biological Diversity. “We’ll fight this illegal rollback and every aspect of Trump’s incredibly harmful anti-environmental agenda.”
Collin O’Mara, president and CEO of the National Wildlife Federation, said much the same in her group’s response to the repeal.
“The collective impact of these changes would be devastating for public health and wildlife across the country—and we will continue to fight to protect America’s waterways every step of the way.” — Kerry Halladay,WLJ editor
