The Environmental Protection Agency (EPA) and the Army Corps of Engineers said they plan to repeal, rather than modify, a controversial Obama-era definition of what constitutes Waters of the United States (WOTUS), arguing that the definition has led to regulatory uncertainty and runs afoul of previous rulings by the Supreme Court.
Opponents of the rule, including the oil and gas industry, worry that WOTUS is so broad that it could be used to include ditches and ruts in dirt roads that capture rainwater.
In a 93-page supplemental notice of proposed rulemaking (SNPR), EPA and the Army Corps clarified that they plan to repeal the definition — aka the Clean Water Rule (CWR), which both agencies jointly promulgated in 2015 — in its entirety. They also proposed to recodify regulations that preceded the CWR.
Both moves satisfy an executive order President Trump issued in February 2017 for the agencies to review the CWR. The rule outlined what constituted WOTUS and, therefore, protection under the federal Clean Water Act (CWA).
“By issuing today’s supplemental proposal, we are responding to public feedback, expanding opportunities for comment, and providing clarity and transparency in the rulemaking process,” EPA Administrator Scott Pruitt said last Friday. “We are making it clear that we are proposing to permanently and completely repeal the 2015 WOTUS rule and keep the pre-2015 regulatory framework in place as we work on a new, improved WOTUS definition.”
EPA and the Army Corps will accept public comments on the SNPR for 30 days, following its publication in the Federal Register.
According to EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are currently being used — or which were used in the past or which may be susceptible for use in interstate or foreign commerce — including all waters subject to the ebb and flow of the tide. It also includes certain impoundments, tributaries and adjacent waters, including wetlands.
In explaining its rationale for repealing the CWR outright, EPA and the Army Corps said in the SNPR that they were “concerned that rather than achieving their stated objectives of increasing regulatory predictability and consistency under the CWA, retaining the 2015 Rule creates significant uncertainty for agency staff, regulated entities, and the public, which is compounded by court decisions that have increased litigation risk and cast doubt on the legal viability of the rule.”
EPA and the Army Corps added that after reviewing their statutory authority and recent court rulings against the CWR, they determined that their “interpretation of the ‘significant nexus’ standard as applied in the 2015 Rule was expansive and does not comport with and accurately implement the limits on jurisdiction reflected in the CWA and decisions of the Supreme Court…
“Considering the substantial uncertainty associated with the 2015 Rule resulting from its legal challenges, and the substantial experience the agencies and others possess with the longstanding regulatory framework currently being administered by the agencies, the agencies conclude that clarity, predictability and consistency may be best served by repealing the 2015 Rule and thus are proposing to do so.”
The environmental group Clean Water Action blasted the Trump administration over the move.
“Scott Pruitt can try all of the new explanations he wants, but the bottom line is his reckless plan flies in the face of public opinion and disregards the concerns of millions of Americans,” said Clean Water Action spokeswoman Jennifer Peters. She added that the SNPR “is a shoddy attempt to paper over a dangerous scheme that puts polluter profits before our water and health.”
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