The Environmental Protection Agency 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’s 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. 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.
American Farm Bureau Federation President Zippy Duvall said, “Farmers and ranchers share the goal of ensuring clean water, but the 2015 Waters of the United States rule was unreasonable and unworkable. It made conservation more difficult and created huge liabilities for farmers. …
“No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious. We are relieved to put it behind us. We are now working to ensure a fair and reasonable substitute that protects our water and our ability to work and care for the land. Farm Bureau’s multi-year effort to raise awareness of overreaching provisions was powered by thousands of our members who joined with an array of allies to achieve this victory for clear rules to ensure clean water.”