On May 2, 2017, the United States Environmental Protection Agency (“EPA”) sent to the White House Office of Management and Budget (“OMB”) a proposed rule that would repeal the 2015 Clean Water Rule, also known as the Waters of the United States Rule (“WOTUS Rule”). The WOTUS Rule currently defines the jurisdictional limits of the Clean Water Act by clarifying which bodies of water the Act regulates. Accordingly, the repeal impacts developers, landowners, farmers, golf courses and anyone else who dredges, fills or discharges pollutants into regulated bodies of water, requiring a permit for such activity.
The proposed rule was drafted in response to an executive order issued by President Trump on February 28, 2017. That order directed EPA and the Army Corps of Engineers to review the WOTUS Rule to ensure that in addition to keeping the nation’s navigable waters free from pollution, it also promotes economic growth, minimizes regulatory uncertainty and shows due regard for the roles of Congress and the states under the Constitution. Because the WOTUS Rule regulated not just large bodies of water but also streams, ponds and other small and intermittent water features, regulated entities had complained that it improperly expanded the reach of the federal government.
The proposed rule would essentially reinstate pre-WOTUS Rule policies on which waters are regulated. Depending on how quickly the proposed rule is promulgated, it may also render moot the pending legal challenges to the WOTUS Rule.
Connell Foley will continue tracking the proposed rule to determine how it impacts our clients.
