U.S. Environmental Protection Agency Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced on September 12 that the agencies are repealing a 2015 rule that expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.
The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 rule — ending a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States.
The Obama-era WOTUS rule was embroiled in litigation since it was proposed, as some representing various industries argued it placed too many restrictions on development, while some states were concerned the rule expanded federal jurisdiction to areas that were state responsibilities.
The rule continues to exclude groundwater from the definition and also proposes not to regulate many wetlands not physically connected to streams or other surface waters. Additionally, it proposes not to regulate stormwater control features and wastewater recycling structures as well as flood-irrigated fields.
NGWA filed comments in April saying it agrees that groundwater should continue to be regulated by states, and notes that in situations where groundwater/surface water interaction needs to be assessed, hydrogeologists have unique expertise that should be utilized. NGWA cautioned the agencies about potential adverse effects a redefinition could have on groundwater quality, specifically regarding stormwater.
With this final repeal, the agencies will implement the pre-2015 regulations, which are currently in place in more than half of the states, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. The final rule takes effect 60 days after publication in the Federal Register.
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