EPA, US Army repeal 2015 rule defining WOTUS, ending regulatory patchwork

US Environmental Protection Agency (EPA) Region 6 Administrator Ken McQueen has announced EPA and the Department of the Army are repealing a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act. The agencies are also recodifying the longstanding and familiar regulatory text that existed prior to the 2015 rule—ending 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 US waters and recodify the longstanding and familiar regulatory text that previously existed,” Andrew Wheeler, EPA Administrator, said. “Today’s Step 1 action fulfills a key promise of President Donald 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.”

“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,” R.D. James, Assistant Secretary of the Army for Civil Works, said. “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 reestablishes 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 WOTUS.”

“Hardworking Americans will be able to build a better future for themselves and their communities as a result of today’s action,” Ken McQueen, Regional Administrator, said. “I look forward to working with our state partners and our stakeholders as we move forward.”

“Texans know better than most the importance of protecting water sources, but the 2015 WOTUS rule prevents farmers, landowners, and job creators from taking care of their land how they know best,” John Cornyn, US Senator, said. “Today’s announcement represents another success in breaking down President Obama’s misguided regulatory regime that harmed Texans of all walks of life.”

“TCEQ supports the decision to repeal the 2015 WOTUS rule,” Toby Baker, Texas Commission on Environmental Quality Executive Director, said. “The rule expanded coverage of the Clean Water Act in a haphazard and unsupported manner increasing regulatory uncertainty. The revised rule proposed earlier this year provides the appropriate level of clarity and coverage.”

“The Dallas Builders Association believes that everyone deserves a roof over their head and an affordable place to live. And we will continue our advocacy with that in mind,” Matt Robinson, Dallas Builders Association President, said. “We appreciate that this administration is also showing the same commitment.”

This rule is the first step in a two-step rulemaking process to define the scope of WOTUS that are regulated under the Clean Water Act. Step 1 provides regulatory certainty as to the definition of WOTUS 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. In this action, EPA and the Army jointly conclude that multiple substantive and procedural errors warrant a repeal of the 2015 Rule. For example, 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, that 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 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.

Additional information is available at: http://www.epa.gov/wotus-rule.