On Thursday, the Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, declared the revocation of a 2015 rule that had extensively widened the interpretation of “waters of the United States” in the Clean Water Act. This repeal is in line with an executive order issued by President Trump the previous year and lays the groundwork for the administration to suggest a revised definition.
“The Clean Water Act gives the federal government jurisdiction over navigable waters, which are defined as ‘waters of the United States,’” said EPA Administrator Andrew Wheeler.
“Over time this definition has expanded from truly navigable waters and their major tributaries to eventually capture isolated ponds and channels that only flow after it rains, expanding Washington’s control over private property and the states’ traditional authority to regulate their land and water resources.”
The announcement marks the reversal of a policy that EPA Administrator Wheeler referred to as “an egregious power grab” and builds upon revisions he outlined late last year. Wheeler outlined a two-step process involving the repeal and replacement of the problematic Waters of the United States (WOTUS) definition.
This recent announcement fulfills a commitment made by the president last year and paves the way for the second step: establishing a new WOTUS definition aimed at providing enhanced regulatory clarity for farmers, landowners, home builders, and developers nationwide.
At the core of this rollback is the EPA’s 2015 decision, during the Obama administration, which significantly expanded the definition of “waters of the United States” subject to federal regulation.
The 2015 rule led to an overreach of federal authority under the Clean Water Act, causing legal challenges, court battles, and a fragmented enforcement landscape, undermining state water and land management authority.
“Before this final rule, a patchwork of regulations existed across the country as a result of various judicial decisions enjoining the 2015 Rule,” said R.D. James, assistant secretary of the Army for Civil Works.
“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 2015 WOTUS rule was applicable in 22 states and the District of Columbia, with the remaining 27 states following rules established in the 1980s. Due to its expansive scope, the 2015 rule posed challenges for various industries, including farmers and mineral development. With Wheeler’s announcement, the entire United States will revert to the earlier regulations while the EPA focuses on the finalization of a replacement rule.
“The patchwork approach does no good for the country and it’s not a reasoned way to regulate or address water quality issues,” he said, adding that the goal was for Americans to be able to know if a body of water was subject to federal regulation “without having to hire an outside consultant or attorney.”
The EPA emphasizes that the repeal will not harm water quality, and it will be accompanied by the restoration of previous, long-standing Clean Water Act regulations. The agency aims to complete the drafting of the replacement rule by the end of the year.
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