EPA, Corps Repeal 2015 WOTUS Rule

At a September 12 event in Washington, D.C., U.S. Environmental Protection Agency Administrator Andrew Wheeler and Department of the Army Assistant Secretary for Civil Works R.D. James announced that the two agencies are repealing a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.

The action fulfills a campaign promise by President Donald Trump, who campaigned against the unpopular rule that was already the subject of several nationwide lawsuits before he took office.

The agencies said they are also recodifying the longstanding regulatory text that existed prior to the 2015 rule, ending what they called a “a regulatory patchwork that required implementing two competing Clean Water Act regulations, which has created regulatory uncertainty across the United States.”

“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” said Wheeler. “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2—a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

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“Today, Administrator Wheeler and I signed a final rule that repeals the 2015 rule and restores the previous regulatory regime exactly how it existed prior to finalization of the 2015 rule,” said James. “Before this final rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 rule. This final rule re-establishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 rule, which is more familiar to the agencies, states, tribes, local governments, regulated entities, and the public while the agencies engage in a second rulemaking to revise the definition of ‘waters of the United States.’”

“By repealing this rule and redefining ‘waters of the U.S.’, we’ll provide greater regulatory certainty and clarity to our nation’s landowners, farmers, and businesses,” said EPA Region 7 Administrator Jim Gulliford. “In doing so, we’re able to help our agricultural community be economically successful, while we continue our work together to protect the quality of our waters for generations to come.”

The action is the first step in a two-step rulemaking process to define the scope of “waters of the United States” that are regulated under the Clean Water Act.

Step 1 provides regulatory certainty as to the definition of “waters of the United States” following years of litigation surrounding the 2015 rule. The two federal district courts that have reviewed the merits of the 2015 rule found that the rule suffered from certain errors and issued orders remanding the 2015 rule back to the agencies. Multiple other federal district courts have preliminarily enjoined the 2015 rule pending a decision on the merits of the rule.

EPA and the Army jointly concluded that multiple substantive and procedural errors warranted a repeal of the 2015 rule. The two agencies say the 2015 rule:

• did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases;

• failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources;

• approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress; and

• suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 rule’s distance-based limitations.

With this final repeal, the agencies will implement the pre-2015 regulations, which are currently in place in more than half of the states, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.

The final rule takes effect 60 days after publication in the Federal Register.

In December 2018, EPA and the Army proposed a new definition—Step 2—that would clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent. In the proposal, the agencies provide a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.

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