Government Drops WOTUS Appeals

March 12, 2019

The U.S. Army Corps of Engineers (Corps) and EPA have voluntarily withdrawn the Government’s appeals that sought to delay the implementation of the Obama administration’s “Water of the U.S.” (WOTUS) rule. The Trump administration published a two-year implementation delay while it worked on a permanent repeal of the WOTUS rule. Several federal court judges ruled that the Corps and EPA had not followed proper administrative procedures to suspend implementation of the Obama-era rule. The agencies appealed those decisions to the Fourth and Ninth Circuits.

The withdrawal of the appeals means that the question of which water bodies can be regulated by the federal government under the Clean Water Act (CWA) will be a “patchwork” with the Obama-era rule applying in 22 states, while implementation in 28 states is blocked by other court rulings.

EPA and the Corps posted a supplemental proposal to repeal the Obama-era WOTUS rule in June 2018. Dropping of the appeals may be a sign that the agencies are ready to publish the final repeal. However, the Office of Management and Budget does not list the repeal as an agency action currently under review.

If the WOTUS is repealed without a replacement, then all 50 states will use a combination of the prior rules and guidance in determining the scope of CWA jurisdiction. The repeal and replacement of the Obama-era WOTUS likely will be heavily litigated.

A separate proposed WOTUS replacement rule has been published, and the public comment period on it closes on April 15. It is unlikely that a replacement WOTUS rule will be finalized before 2020.