On December 23, 2019 the repeal of the 2015 Obama Clean Water Rule by the Trump administration occurred. The 2015 Clean Water Rule had been in effect in Illinois and 22 other states since August 16, 2018 as the result of a US District Court injunction against an attempt to suspend the Obama Clean Water Rule.
The rule to repeal the 2015 Clean Water Rule was signed by both the US Environmental Protection Agency (USEPA) and US Army Corps of Engineers (USACE) on September 12, 2019 and was published in the Federal Register on October 22, 2019 for the required 60 day notice. On December 23, 2019 the agencies reinstated the 1986 regulations in accordance with applicable agency guidance documents consistent with Supreme Court decisions and longstanding agency practices.
The 2015 Clean Water Rule did expand the limits of USACE jurisdiction over Waters of the United States, including wetlands, on a number of V3 projects.
There are pending lawsuits in two U.S. District Courts challenging the repeal of the Clean Water Rule and the automatic reversion back to the 1986 regulations without public comment.
So what does this mean for V3’s clients?
- USACE Jurisdictional Determinations (JDs) will be made based on 2008 federal policies and guidance.
- On December 23, 2019, the USACE issued one pending JD for a V3 project that was waiting for the Obama Rule to be repealed, as it resulted in a more favorable determination.
- For sites in Lake County, Illinois, Preliminary Jurisdictional Determinations (PJD’s) issued by Lake County Stormwater Management Commission (SMC) which were made under the 2015 Rule can now be amended through SMC and the USACE.
- Recently completed wetland delineation reports may need to be revised in accordance with the 2008 guidance.
The next change in federal jurisdiction over “Waters or the US” including wetlands is expected to occur early in 2020 with the publication of the revised “Waters of the US” definition in the Federal Register. This rule was proposed in February 2019 and the USEPA and USACE are currently reviewing more than 600,000 public and agency comments before taking final action. However, as with the 2015 Clean Water Rule, there are likely to be additional legal challenges, potential delays and confusion.
For additional information on any of these changes to the Clean Water Act regulatory program, please contact one of V3’s wetland experts, Tom Slowinski, Scott Brejcha or Jeff Moody.