EPA, Army repeal expanded definition of “waters of the United States”

The U.S. Environmental Protection Agency (EPA) along with the Department of the Army are repealing a 2015 rule that expanded the definition of “waters of the United States” under the Clean Water Act.

This follows years of litigation surrounding the 2015 rule. Recently, two federal district courts said there were concerns and errors with the rule and remanded it back to the agencies. The EPA, along with the Army, jointly concluded that multiple errors warrant a repeal of the 2015 rule.

“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,” EPA Administrator Andrew Wheeler said. “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.”

Among the concerns, the courts said the 2015 rule failed to adequately recognize the primary responsibilities and rights of states to manage their own land and water resources. The agencies will implement the pre-2015 regulations. However, the EPA and the Army have proposed a new definition that would clearly define the difference between federally regulated waterways and those under state authority.

“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,” R.D. James, assistant secretary of the Army for Civil Works, said. “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.’”

The Edison Electric Institute (EEI) is among those groups that support the rule change.

“The 2015 WOTUS rule was so broadly written that it created substantial confusion and regulatory uncertainty, which caused customer costs to increase due to new operating requirements and delays for critical infrastructure projects,” EEI President Tom Kuhn said. “EEI applauds EPA and the Army Corps of Engineers for repealing the rule, which multiple courts already had found to be unlawful.”

Kuhn said the repeal is a key step toward providing clarity for EEI’s member companies, which are making substantial investments to improve the grid.

“We look forward to working with EPA, the Army Corps, states, and other stakeholders as the agencies move forward with their efforts to finalize a new, clear WOTUS definition that will protect the integrity of our nation’s waters while offering more regulatory certainty for energy infrastructure permitting,” Kuhn added.

Jim Matheson, president and CEO of the National Rural Electric Cooperative Association, expressed his organization’s support for the repeal.

“The 2015 rule would have increased costs and regulatory hurdles for electric co-ops to build and maintain critical infrastructure without providing meaningful environmental benefits. We support repeal of the rule and its eventual replacement with sensible regulation that provides clarity and recognizes the important role of states in managing our water resources,” Matheson said. “Today’s announcement will help electric co-ops carry out important maintenance activities while also building new energy infrastructure as needed.”