WASHINGTON (September 12, 2019) — At an event in Washington, D.C., U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced that the agencies 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 re-codifying 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.
U.S. Secretary of Agriculture Sonny Perdue praised the EPA for taking another step to fulfill President Trump’s pledge to repeal and replace the Waters of the United States (WOTUS) rule. “Repealing the WOTUS rule is a major win for American agriculture. The extreme overreach from the past Administration had government taking the productivity of the land people had worked for years,” Secretary Perdue said. “Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come. President Trump is making good on his promise to reduce burdensome regulations to free our producers to do what they do best – feed, fuel, and clothe this nation and the world.”
Background:
One of President Trump’s earliest acts in office was an Executive Order directing EPA and the Army Corps to review and potentially replace the Obama Administration’s definition of the “Waters of the United States.” The EPA and the Army Corps have repealed the 2015 Rule that impermissibly expanded the definition of “Waters of the United States” under the Clean Water Act. The agencies upcoming action will restore the regulatory text that existed prior to the 2015 Rule and will end the inconsistent regulatory patchwork that has created uncertainty and has hindered projects from moving forward that can benefit both the environment and the economy. The repeal remedies the legal and procedural deficiencies of the 2015 Rule, addresses the extensive litigation surrounding it, and re-codifies and restores a regulatory process that has been in place for years. The new rule will provide regulatory certainty to our nation’s farmers and businesses as to the definition of “Waters of the United States.”
Ag Groups Respond
National Cattlemen’s Beef Association President Jennifer Houston responded to the announcement saying, “Cattle producers are the nation’s original environmental stewards – we work hard to ensure that our natural resources remain pristine and to implement conservation practices to protect our water resources. The 2015 WOTUS Rule was an illegal effort by the federal government to assert control over both land and water, significantly impacting our ability to implement vital conservation practices.
“After years spent fighting the 2015 WOTUS Rule in the halls of Congress, in the Courts, and at the EPA, cattle producers will sleep a little easier tonight knowing that the nightmare is over. Thanks to President Trump and Administrator Wheeler for their commitment to farmers and ranchers, and restoring the rule of law. NCBA looks forward to the finalization of a practical Waters of the United States definition that will protect our water resource while allowing cattle producers to do their jobs effectively.”
Comments from EPA and Army
“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 re-codify the longstanding and familiar regulatory text that previously existed,” said EPA Administrator Andrew 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.”
“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 R.D. James, Assistant Secretary of the Army for Civil Works. “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 ‘waters of the United States.’”
Going Forward
Today’s rule is the first step—Step 1—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. 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.
- 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.
