On Sept. 12, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) finalized a rule to repeal the 2015 Clean Water Rule. The 2015 Rule aimed to clarify which waterbodies are federally regulated under the Clean Water Act (CWA) and define which waterbodies are considered a “waters of the U.S.”
Local governments serve as coregulators in implementing and enforcing many federal laws with the states, including CWA programs. Moreover, cities and counties own public safety facilities and infrastructure that are directly impacted by federal laws and regulations. As partners in protecting America’s water resources, it is essential that state and local governments have a clear understanding of the vast effect that a change to the definition of “Waters of the U.S.” will have on all aspects of the CWA.
The final repeal rule is the first step in what the agencies have said is a two-step process to rescind and revise the 2015 Rule. The “waters of the U.S.”, or WOTUS, replacement rule is expected to be finalized by the end of the year. NLC previously raised concerns with the agencies on both of these rulemakings, particularly with the process used to develop the rules.
The final repeal rule will go into effect 60 days after publication in the Federal Register, ending the regulatory patchwork of which definition of “waters of the U.S.” is valid in each of the states. Today, 22 states are implementing the 2015 Rule and the others are implementing the 1986 guidance.
The final repeal of the 2015 Rule will recodify the longstanding regulatory framework that existed prior to the 2015 rule, providing regulatory consistency across states. The 1986 guidance will become valid nationwide until the replacement rule is finalized.
While nationwide consistency is important, the 1986 guidance is also not a workable solution. The uncertainties for state and local governments stemming from the 1986 guidance led to two U.S. Supreme Court decisions in 2006 that forced the agencies to come up with a rule to define “waters of the U.S.”
The Obama Administration’s 2015 Clean Water Rule was the agency’s response to those Supreme Court decisions. Legal challenges on this rule remain pending. Additionally, legal challenges to the Trump Administration’s final repeal rule are expected, as well legal challenges to the final forthcoming replacement rule. Only time will tell how the legal maneuvering will play out on this issue.
About the Authors: Carolyn Berndt is the program director for infrastructure and sustainability on the NLC Federal Advocacy team. Follow Carolyn on Twitter at @BerndtCarolyn.
Lisa Soronen is the executive director of the State and Local Legal Center, which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.