EPA, U.S. Army Repealing 2015 Rule Defining “Waters of the United States” and Recodifying Familiar Definition
NEW YORK – At an event in Albany, New York, U.S. Environmental Protection Agency (EPA) Regional Administrator Pete Lopez, accompanied by representatives from the New York Farm Bureau and the Business Council of New York State, announced that 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 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 Clean Water 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.”
“Throughout New York, New Jersey and the Caribbean, we rely on how to balance water resources to maintain environmental quality while ensuring economic opportunity,” said Regional Administrator Pete Lopez. “Repealing this rule and providing clear definition of this balance will allow us to protect our environment while allowing the economy to flourish.”
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, 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.
“Farmers share the goal of protecting the nation’s water, but the 2015 Waters of the United States rule was unreasonable and unworkable,” said New York Farm Bureau President David Fisher. “It made protecting water quality and conservation efforts more difficult and created huge liabilities for farmers, especially when what waters would be regulated under the old rule could not be clearly defined. This turned farming into a guessing game on which land use required federal permits and what did not. New York Farm Bureau appreciates the EPA’s diligent effort to repeal and clarify the WOTUS rule to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land.”
“The previous rule expanded regulation beyond the jurisdictional limits that Congress envisioned under the Clean Water Act,” said Ken Pokalsky, Vice President of The Business Council of New York State. “This revised rule will end a great deal of uncertainty, will provide much-needed clarity, and will return the regulatory focus that the manufacturers, farmers, and taxpayers of this state and country rightly desire.”
“AGC NYS believes that the federal government should not assert control over waters that have historically been under the sole jurisdiction of the states,” said Mike Elmendorf, President & CEO of Associated General Contractors of New York State (AGC NYS). “An expanded federal permitting process would slow economic growth by increasing the cost of, and delaying, necessary improvements to public and private infrastructure.”
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.
Additional information is available at: http://www.epa.gov/wotus-rule.
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.” Section 1 of the Executive Order states that “[i]t is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.” 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.