EPA repeals controversial Obama-era provision under the Clean Water Act

Environmental Protection Agency (EPA) Regional Administrator Pete Lopez said Thursday (Sept. 12) that the EPA and the Department of the Army are repealing a 2015 rule that expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.

The agencies are 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, 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 one action fulfills a key promise of President Trump and sets the stage for Step two – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

The rule was passed during President Barack Obama’s second term in office. It expanded the definition of waters that could be regulated from “navigable” or continuously flowing to other of bodies of water that could include creeks, streams, wet weather creeks, ponds and other potentially temporary bodies of water. Farmers and ranchers had largely opposed the regulation expansions.

Today’s rule is the first step in process to define the scope of “waters of the United States” that are regulated under the Clean Water Act. 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. 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; and
• 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.

The Arkansas Farm Bureau supported the move.

“As farmers and ranchers, we share the goal of protecting the nation’s water, but the 2015 Waters of the United States rule was unreasonable and unworkable,” said Randy Veach, president of Arkansas Farm Bureau. “It made conservation more difficult and created huge liabilities for farmers.”

The administration’s repeal announcement follows a multi-year effort by the American Farm Bureau, ArFB and other state Farm Bureaus and an array of allies to raise awareness of overreaching provisions of the rule.

“No regulation is perfect, and no rule can accommodate every concern, but the 2015 rule was especially egregious,” Veach said. “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.”