WOTUS Confusion Abounds but More Clarity Could Come Soon

Filed in Environmental by on October 18, 2018 0 Comments

Multiple legal challenges, combined with federal rulemakings in various stages, are complicating efforts to track the federal Waters of the U.S. (WOTUS) definition.

The number of states subject to the Obama Administration’s 2015 rule, and those subject to the prior 1986 WOTUS definition, has shifted in just the past few months. On Aug. 16, the U.S. District Court for South Carolina halted the Trump Administration’s Suspension Rule, which would have delayed implementation of the 2015 rule to 2020. As a result, the 2015 rule became applicable in 26 states, with the 1986 definition of WOTUS being applicable in 24 states.

However, on Sept. 12, the U.S. District Court for Southern Texas issued a temporary injunction against the 2015 rule in Texas, Mississippi and Louisiana. Then, on Sept. 18, the U.S. District Court for North Dakota added Iowa to its list of states subject to an existing injunction. Now, the 2015 rule applies in 22 states, with the 1986 definition applicable in 28 states.

WOTUS mapWhat will end this regulatory confusion? Additional rulemakings by EPA and the Corps hold the answer. The Office of Management and Budget (OMB) Semi-Annual Regulatory Agenda, updated this week, expects final nationwide repeal of the 2015 rule, and temporary replacement with the 1986 regulatory definition of WOTUS, to be finalized by March 2019.

Also, according to the regulatory agenda, EPA plans to issue a Notice of Proposed Rulemaking on a new WOTUS definition this month, with the final rule expected in September 2019.

Of course, the courts could also provide needed clarity. The U.S. Justice Department has appealed the Suspension Rule decision to the U.S. Fourth Circuit Court of Appeals. If the nationwide injunction were reversed, the 1986 definition of WOTUS would apply in all states until EPA repeals or replaces the 2015 rule.

NAHB continues to monitor all rulemakings and cases, and will keep members informed of WOTUS progress. For more information, contact Evan Branosky, 202-266-8662.


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