EPA, Army repeal 2015 rule defining ‘waters of the United States’

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 on Sept. 12 announced that the agencies are repealing a 2015 rule that expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.  Wheeler and James signed the final rule that repeals the 2015 rule.

“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,” the EPA said in a news release.

The final 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.

The EPA said that the first step 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,” the news release said.

With the final repeal, the EPA and the Army will implement the pre-2015 regulations, which 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, the EPA and the Army Corps of Engineers unveiled a proposed new “waters of the United States” definition that clarifies federal authority under the Clean Water Act.

The agencies noted that their proposal was the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with a February 2017 executive order signed by President Trump.

The executive order said that it 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 agencies said their proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies and where it does not.

On September 27, 2017, the American Public Power Association submitted comments in support of the proposed rule to repeal the 2015 WOTUS Rule. The Association "looks forward to agencies expeditiously finalizing its Step 2 WOTUS replacement rule," said Carolyn Slaughter, Director, Environmental Policy, at the Association.