The Environmental Protection Agency and Army Corps of Engineers are formally repealing the 2015 “waters of the U.S.” rule in advance of publishing a new WOTUS rule around the end of the year.
EPA Administrator Andrew Wheeler announced the impending publication of the repeal rule, the first step in the Trump administration’s rewrite of WOTUS, on Wednesday.
The action will make pre-2015 Clean Water Act regulations the law of the land. After the new administration took office, it tried to prevent implementation of the 2015 rule, but court battles in various states resulted in a patchwork of regulations: In about half the states, the Obama-era rule was in effect, while in the other half the pre-2015 regulations were.
Wheeler repeated the descriptive language he’s used in the past to describe the 2015 rule, calling it an “egregious power grab” and saying the new rule would provide “regulatory certainty” while still protecting water quality.
The administration’s proposal would lift federal protections for ephemeral streams, which are fed by precipitation, and impose a more stringent test for which intermittent streams would be covered. It also would narrow the definition of “adjacent wetlands,” defined as those abutting jurisdictional waters.
The American Farm Bureau Federation said it’s pleased with the repeal. Senior regulatory relations director Don Parrish called it a “nice cleaning up till they move to finalize a regulation that provides some clarity.”
Wheeler said the new rule would be published by the end of the year or early in 2020.
Environmental groups are opposed to repealing the Obama rule and to the proposed changes. A representative of one of them, attorney Jon Devine of the Natural Resources Defense Council, criticized the two-step process the agencies are using to replace the 2015 rule.
“The agencies have claimed they want regulatory certainty, but they’re doing this repeal now, which will put in place a new set of regulations, then plan to replace those regulations in just a few months with their revised definition,” he said in an email.
Repealing the 2015 rule is unnecessary, Devine said. “If the administration wants its revised definition to be the standard, it could do a single rulemaking, which would replace the 2015 Clean Water Rule with its new one.”
“The only thing that explains it,” he said, “is that they’re worried that both their repeal and replacement actions are legally weak, so they’re trying to get two bites at the apple.”
Parrish, however, said he thought the repeal would be legally defensible because two courts have already found fault with 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.”
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