On September 12, 2019, the Environmental Protection Agency and U.S. Army Corps of Engineers (Corps) issued a prepublication notice announcing the repeal of the 2015 rule defining waters of the U.S. The final “recodification of pre-existing rules” is expected to be published in the Federal Register soon; it will be effective 60 days from the published date.
The 2015 definition of waters of the U.S. is in place in Colorado until the repeal is effective. Once the “recodification of pre-existing rules” is effective, the entire U.S. will revert to Rapanos guidelines for defining waters of the U.S. Additional changes will result when the 2019 rule is published (expected by the end of the year). However, both the repeal and the 2019 rule will be subject to court challenges.
If you have an approved jurisdictional determination, ERO recommends checking the expiration date to confirm it is still valid. If you have any projects requiring a jurisdictional determination, ERO recommends consulting with one of our project managers to discuss permitting strategies and potential next steps. Approved jurisdictional determinations are valid for 5 years.
Next Steps:
ERO will continue to consult with our local Corps offices and update our clients on any developments as the 2019 rule is implemented. Please feel free to contact Aleta Powers, Moneka Worah, or your ERO project manager if you have any questions.
Information on EPA’s web site: https://www.epa.gov/wotus-rule/definition-waters-united-states-recodification-pre-existing-rules-pre-publication-version