The Environmental Protection Agency (EPA) and Department of the Army published Thursday a final rule to repeal the 2015 Clean Water Rule (CWR), which extended regulatory protection to smaller upstream rivers and creeks, saying they would restore the regulatory text that existed before the Obama-era rule.
The 172-page final rule would end the “regulatory patchwork” that has been in effect since the Obama administration unveiled its finalized CWR in 2015 and subsequent legal challenges that have resulted in temporary halting of the regulations in all but 22 states, EPA said.
The agencies said they sought to repeal the CWR “because it did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases,” and because they had concluded that in promulgating the rule the agencies in 2015 had not stripped powers from states that are spelled out in the Clean Water Act.
A replacement rule that would restrict the number of waterways protected by federal law is expected to be proposed by the end of the year.
The Obama-era CWR, created by the EPA and the U.S. Army Corps of Engineers, clarified the definition of what constituted Waters of the United States (WOTUS) and therefore what deserved protection under the CWA. At the time, EPA and the Army Corps called the rule an “historic step” to protect clean water from pollution and degradation in streams and wetlands throughout the nation. It was supposed to more precisely define the protected waters, and supposedly would make permitting for businesses and industry easier, faster and less costly.
EPA and the Army Corps in July 2018 that they planned to repeal, rather than modify, the definition of what constituted WOTUS, arguing that the definition had led to regulatory uncertainty and run afoul of previous rulings by the Supreme Court.
Six months later, the Trump administration unveiled a narrowed definition of which waterbodies deserve protection under the federal CWA. Under a proposed rule signed by the EPA and the Army Corps, some types of ditches and wetlands would be excluded from the official definition of WOTUS.
“Today’s action to restore one national definition provides certainty for stakeholders and ensures that we can build upon existing standards to improve water quality,” said Marty Durbin, president of the U.S. Chamber of Commerce’s Global Energy Institute. “We look forward to working with the administration to do just that.”
The National Association of Manufacturers, which hosted the EPA’s announcement at its Washington, DC, headquarters, tweeted that repealing the 2015 rule was “a victory for manufacturers.”
The final rule will be promulgated once it is published in the Federal Register, EPA said.
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