Federal Agencies Repeal the 2015 Clean Water Rule

On September 12, 2019, the EPA and US Army Corps of Engineers signed a final rule to repeal the 2015 Clean Water Rule (2015 Rule) and re-codify the regulatory text defining federal “waters of the United States” (WOTUS) that existed prior to the 2015 rule. The 2015 rule which became effective in California on August 16, 2018, broadened the definition of WOTUS and gave regulators authority to speculate regarding the historic presence of wetlands based on aerial photo interpretation. In effect the 2015 rule extended federal jurisdiction into more waters than at any time in the history of the Clean Water Act.

In February 2017, President Trump issued an executive order to review the 2015 rule and replace it with a rule that included, in part, a definition of WOTUS that was consistent with Supreme Court Justice Scalia’s opinion in the 2006 Rapanos Court case. The agencies proposed a two-step rulemaking process to comply with the executive order with step one being the repeal of the 2015 rule and re-codification of the previous definition of WOTUS. The September 12, 2019 rulemaking represents the completion of step one, which will go into effect 60 days after it is published in the Federal Register.

The second step will be to issue a final rule regarding the revised definition of WOTUS. The proposed rule, Revised Definition of “Waters of the United States”, was published in the Federal Register on February 14, 2019 and is currently under review.

What does this mean for landowners in California? Essentially, the definition of WOTUS reverts back to the previous definition of WOTUS which is guided by Supreme Court cases and rule making (1986, Final Rule for Regulatory Programs of the Corps of Engineers).  The 2015 rule requirement to include nearly all waters as jurisdictional, regardless of hydrological connection, based on brightline distances is eliminated.

However, in its infinite wisdom, the State of California has developed a State only definition of Waters of the State and a new wetlands permitting program that will assume jurisdiction of most non-federal waters, thus in the State of California, landowners will see little to no regulatory relief. The States new policy is scheduled to go into effect spring 2020.