Corps and EPA also codify regulatory patchwork created under differing court decisions.
by Jacqui Fatka
Editor’s note: The following article has been republished courtesy of Feedstuffs. The original article can be found here.
At an event Thursday afternoon in Washington, D.C., the Environmental Protection Agency and the Army Corps of Engineers formally repealed the 2015 rule that expanded the definition of “waters of the U.S.” (WOTUS) under the Clean Water Act. The agencies are also recodifying the long-standing and familiar regulatory text that existed prior to the 2015 rule, thus ending a regulatory patchwork that required implementing two competing Clean Water Act regulations and created regulatory uncertainty across the U.S.
The rule is the first step — Step 1 — in a two-step rule-making process to define the scope of “waters of the U.S.” that are regulated under the Clean Water Act. Step 1 provides regulatory certainty as to the definition of such waters following years of litigation surrounding the 2015 WOTUS rule under the Barack Obama Administration. The two federal district courts that have reviewed the merits of the 2015 rule found that it 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 its merits.
R.D. James, assistant secretary of the Army for Civil Works, said he and EPA Administrator Andrew Wheeler "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. 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 re-establishes national consistency across the country by returning all jurisdictions to the long-standing 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 rule-making to revise the definition of ‘waters of the United States.’”
EPA stated that the two agencies identified procedural errors that warranted a repeal of the 2015 rule. For example, they said the rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act intended by Congress and reflected in Supreme Court cases. The agencies added that the 2015 rule failed to adequately recognize, preserve and protect the primary responsibilities and rights of states to manage their own land and water resources.
The WOTUS rule also approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress. Meanwhile, it also suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 rule’s distance-based limitations, the agencies said in a statement.
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 long-standing agency practice. The final rule takes effect 60 days after publication in the Federal Register.
In December 2018, EPA and the Corps 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.
Barb Glenn, chief executive officer of the National Association of State Departments of Agriculture (NASDA), welcomed the repeal but said the work is not done. “As the EPA and Army Corps continue developing a replacement WOTUS rule, adding a physical indicator standard will help ensure landowners are provided with the necessary certainty. We look forward to working with our federal partners to achieve our shared goals of protecting our nation’s water resources and defining clear federal boundaries,” Glenn said in a statement.
House Agriculture Committee ranking member Michael Conaway (R., Texas) commended the Trump Administration for repealing the “land grab” attempted under the Obama Administration through its WOTUS regulation. “WOTUS attempted to stretch the reaches of federal power under the Clean Water Act from navigable and interstate waters, which are rightly protected, to encompass ditches, playas, stock ponds and literally any body of water – regardless of how small or temporary the water may be. The Trump Administration’s efforts to bring the scope of EPA’s regulatory activity back to interstate and navigable waters not only ensures that EPA’s mission comports with Supreme Court rulings but also applies a commonsense understanding of what constitutes waters of the U.S., providing legal certainty to all Americans,” Conaway said in a statement.
Agricultural groups welcomed the action by the current Administration.
The American Farm Bureau Federation conducted a multiyear effort to raise awareness of what it viewed as overreaching provisions on thousands of its members.
“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 president Zippy Duvall said.
"We're pleased the EPA is moving towards a commonsense WOTUS rule that works with — not against — farmers to protect our nation's waterways," said National Pork Producers Council president David Herring, a pork producer from Lillington, N.C. "The previous WOTUS rule was a dramatic government overreach and an unprecedented expansion of federal authority over private lands. Today's action will remove the threat that the 2015 WOTUS rule posed for our ability to efficiently grow the amount of food needed by people around the globe while providing regulatory certainty to our farmers and businesses. We look forward to working with this administration to finally implement a new WOTUS rule."
Citing the many ambiguities and uncertainties of EPA’s proposal for what became the 2015 rule, the National Milk Producers Federation (NMPF) had at that time urged EPA to rethink it in 2014. In its analysis, NMPF found that the EPA and Corps proposal did not meet the requirements of various Supreme Court rulings that were the catalyst for the 2015 regulation.
“NMPF is pleased to see the 2015 WOTUS rule officially repealed and remains committed to working with the EPA as they draft the new WOTUS definition,” NMPF said in a statement.
Chad Gregory, president and CEO of the United Egg Producers (UEP), welcomed the actions, saying, “UEP had opposed the elements of the 2015 WOTUS rule that claimed jurisdiction that was far too broad and inserted federal agency regulatory controls over largely dry water courses and wet areas that are too remote from anything that is navigable to warrant coverage under federal law. The 2015 rule’s wide claim of jurisdiction added nothing to benefit remote waters, but it did create confusion and unneeded burdens on people in rural areas."