On July 12, the U.S. EPA took the next formal step to finalize a “rulemaking” that would finally repeal the Obama-era 2015 rule defining what are Waters of the U.S. (WOTUS) under the Clean Water Act. That draft of the final “Repeal” rule is now being reviewed by the federal agencies under a 90-day or less process overseen by the Office of Management and Budget.  It is possible this final rule will be published in the Federal Register in August.

If this “WOTUS” rule discussion seems confusing, that is because it is confusing. Due to the confluence of rulemakings and court cases, there are two different sets of rules in force in various states of the country. In addition, there is the “Repeal” rule to nullify the 2015 rule, an “Applicability Date” rule that the Trump EPA tried to use to effectively push out the start date of the 2015 rule, but that has been stymied by the courts, and the Trump EPA “Replace” rule that has been proposed, commented on and should be finalized in the first half of 2020.

Egg producers and land managers thinking about getting a WOTUS jurisdictional determination on their property at this time should proceed very carefully. Unless requested, it is highly unlikely that the EPA or the Army Corps of Engineers will make a jurisdictional WOTUS determination on property in this interim period.  But if a determination is made that includes some regulatory action, a qualified land management engineer should be consulted.  Members may also contact UEP’s environmental policy consultant, Tom Hebert (tom.hebert@bayardridge.com) to help determine the next steps.

To keep track of this from a 35,000-foot perspective, below is a short primer, organized by what is in effect today, where and what is coming next:

1. WOTUS rule in effect in 22 states: The 2015 WOTUS rule issued by the Obama EPA has been enjoined through legal action in 28 states, and it is currently in effect in 22 states.
2. WOTUS rules in effect in 28 states: WOTUS rules issued in 1986 and 1988, with interpretation through guidance issued during the Bush Administration, are currently in effect in 28 states.
3. Change in the Applicability Date of the 2015 Rule: The Administration’s effort to end the implementation of the 2015 rule through pushing back the date by which it would take effect was finalized in a 2018 rulemaking, but the rule was quickly subjected to a nationwide stay by the courts.
4. Repeal of the 2015 Rule: A draft of the final “Repeal” rule which would strike the 2015 rule in its entirety is now in clearance at OMB and could be issued as a final rule yet in August. Depending on the timing of the issuance of the “Replace” rule (see below) the 1986 and 1988 WOTUS rules may be in effect nationwide for a brief period of time.
5. Replace the 2015 Rule: A draft of the final “Replace” is now under development by U.S. EPA and the Army Corps, responding to the more than 600,000 comments they received on the proposed rule.  It is expected to be issued in the first half of 2020.

See the map below for the specific states where the 2015 WOTUS rule is in effect