Waters of the U.S. Rule Update
The 2015 Waters of the U.S. Rule that is currently in place in 22 of the 50 states nationwide will be repealed effective December 23, 2019. The Trump Administration released a rule repealing the 2015 rule on October 22, 2019. This is part one of the two-part plan to replace the Obama Administration waters of the U.S. rule that has plagued the country with uncertainty for the last four years.
Part two will involve replacing the old rule with a newly promulgated rule. Notably, the major change expected in the new rule is that ephemeral streams and wetlands without a hydrological connection will NOT be considered waters of the U.S., whereas under the 2015 rule they were. The new rule is expected to be issued and effective January 2020 but the Trump Administration has not released definitive details on when a draft is expected to be published.
The repeal of the 2015 rule will leave the country in a bit of a disarray. On December 23, 2019, the 1993 definition of waters of the U.S. will once again be the prevailing rule until a new rule becomes effective. In addition to the 1993 rule, the controlling law from December 23, 2019 until the new rule is effective will be the Supreme Court cases that further defined the scope of the definition, e.g. SWANNC and Rapanos. It is unclear what the regulatory implications will be for existing operations during that tumultuous timeframe.