What Will Become Of The “WOTUS” Rule?
Potential Rule Change Provides No Long-Term Certainty For The Waters of the United States Rule
By Miguel Suazo and Chelsea Allen
The Clean Water Act came into law in 1972 in order to regulate water pollution, and provided the EPA with various controls with which to regulate wastewater and set industry water quality standards for contaminants. According to the history provided by the EPA, it “Established the basic structure for regulating pollutant discharges into the waters of the United States.” Exactly which waters falls under the definition of “waters of the United States” (“WOTUS”) is thus quite important, especially for private industry, because it means that waters falling within that definition are subject to Federal law and regulation. Waters falling under the Clean Water Act’s “WOTUS” rule can deeply impact adjoining businesses (even those not in what one would think of as particularly close proximity to a given stream or wetland) and can limit the use of private lands. Many of the complaints from industry about this regulation stem from the fact that compliance with the WOTUS rule can be quite difficult and expensive to the point of making it cost-prohibitive to operate at all. Proponents argue the important interest that all of us as citizens of the United States have in clean, unpolluted water. Both positions are important. But many were concerned that changes to the WOTUS definition made in 2015 would unfairly impact small businesses and farmers and unreasonably increase Federal reach.
Essentially what transpired is that in 2015 the EPA revised the original regulatory definition of “waters of the United States,” arguably broadening its reach and power. This change was proclaimed by the administration to be an effort to clarify exactly which waters meet the “WOTUS” definition and are therefore subject to the Federal regulation, and, according to then President Obama, who would be “held accountable” in the event of violations. Not surprisingly, the resulting 2015 WOTUS rule has since been the subject of several fiery legal challenges. Again, not surprisingly, President Trump added this issue to the lengthy list of executive orders he issued earlier this year in his attempt to overturn or amend several environmental regulations adopted under the Obama Administrations.
Now, pursuant to one of those executive orders (often referred to as an “E.O.”) issued in February by Trump, the EPA, along with the Department of the Army and the Army Corp of Engineers, is working to “rescind or revise the 2015 Rule.” Interestingly, unlike the approach it took to obviate Obama’s methane rules (click here to see our article discussing the EPA’s failed attempt to simply stay implementation of Obama-era methane rules affecting the oil and gas industry), in this case, the EPA appears to be following the proper notice and comment process for making a legal rule change. Toward that end, the agency has begun to solicit stakeholder input through the notice and comment and the public meeting process, and official notice of upcoming meetings was published in the Federal Register this August. In addition, the public notice and comment period that began July 27, 2017, and was set to end on August 28, 2017, was extended until September 27, 2017. The agency states that its current plan is “to propose a new definition that would replace the approach in the 2015 Clean Water Rule” with a rule in conformance with Trump’s Executive Order.
Long-term uncertainty remains in regard to the WOTUS rule change. An official legal change favorable (or, at least, more favorable) to industry and small businesses may come about during the Trump administration, though this is no guarantee of what steps may be taken under subsequent presidencies. We will continue to follow this issue closely and publish our latest updates and observations on the potential impact of this rule as they become available.