The U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) are repealing a 2015 rule that 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 U.S. waters and recodify 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.
The rule establishes what James called “national consistency across the country” and returned all jurisdictions to the framework that existed prior to the 2015 rule.
This rule 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, according to the EPA. Step 1 provides regulatory certainty as to the definition of “waters of the United States” following years of litigation surrounding the 2015 rule. The EPA and the Army jointly concluded that multiple substantive and procedural errors warrant a repeal of the 2015 rule.
According to the two agencies, 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.
The National Mining Association (NMA) applauded the reversal. President and CEO Hal Quinn said, “Today’s repeal turns the page on a deeply problematic regulation that exemplified the last administration’s federal overreach. The 2015 rule unlawfully expanded the scope of federal Clean Water Act jurisdiction and, contrary to its intended purpose, added significant confusion to the question of which waters are federally regulated and which are protected by the states.”
With this final repeal, the agencies will implement the pre-2015 regulations that are currently in place in more than half of the states. 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 provided a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority.
The final Step 1 rule follows President Trump’s Executive Order 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The executive order also directs the EPA and the Department of the Army to review the 2015 Rule for consistency with the policy outlined in Section 1 of the order and to issue a proposed rule rescinding or revising the 2015 rule as appropriate and consistent with law.