The Environmental Protection Agency’s (EPA’s) withdrawal of the 2015 Waters of the U.S. (WOTUS) Rule appeared in the federal register this week. With an effective date of Dec. 23, 2019, the unlawful 2015 WOTUS rule will be no longer be in effect in any part of the U.S., barring a legal stay.
This withdrawal is the first part of a two-step process. The EPA issued a proposed WOTUS rule in December 2018 to replace the 2015 rule. The National Stone, Sand & Gravel Association (NSSGA) supports many of the improvements EPA made in the 2018 proposal. The final replacement rule should appear in late 2019 or early 2020.
“First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos.
Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to ’recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution’ and ’to plan the development and use . . . of land and water resources.’ 33 U.S.C. 1251(b).
Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachment of federal jurisdiction over traditional State landuse planning authority.
Lastly, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support. The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule.”