The 2015 Clean Water Rule, also known as the Waters of the United States (WOTUS) Rule, clarified and expanded the Federal Government’s authority to protect the nation’s waterways and water resources from pollution. Finalized under the Obama Administration, WOTUS extended Federal protection to smaller bodies of water such as streams, rivers, and wetlands, which previously had been vulnerable to pollution due to the lack of clarity in existing laws. The 2015 rule faced a barrage of lawsuits immediately after it was issued. As a result of these court challenges, the rule has been in effect in only 22 States, the District of Columbia, and the U.S. territories. It is on hold in 28 States.
In 2017, the Trump Administration called for a review of the 2015 Clean Water Rule as part of the president’s overall regulatory reform agenda, aimed at streamlining processes and reducing unnecessary costs and burdens. While administration officials reviewed the rule, lawmakers in Congress introduced legislation and held hearings on the matter.
In 2019, Representatives Mac Thornberry (R-TX) and Jaime Herrera Beutler (R-WA) introduced H.R. 2287 and H.R. 667, respectively, to repeal the Clean Water Rule. The Senate Committee on Environment and Public Works held a June 12 hearing to examine the impact of WOTUS on States. Soon thereafter, committee member Senator Mike Braun (R-IN) introduced the Define WOTUS Act of 2019 (S. 2356) to repeal and provide a new definition for “waters of the United States.” None of these bills has received any further legislative action.
The Trump Administration’s review resulted in the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army’s joint decision to repeal and replace the 2015 rule in its entirety.
On September 12, 2019, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James officially announced the repeal:
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. Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 — a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.
The Administration’s decision to repeal the 2015 rule has garnered both praise and criticism. Supporters of the repeal include farmers, real estate developers, energy companies, and manufacturers. The 2015 rule has been unpopular with landowners who have argued that it violates private property rights and makes compliance unnecessarily burdensome and costly for farmers. The National Association of Manufacturers (NAM) also applauded the repeal. NAM has long argued that the 2015 rule was an inappropriate overreach by the Federal Government and that it threatened job creation and economic growth. The EPA was sympathetic to these complaints during its review of the WOTUS Rule. Administrator Wheeler characterized the 2015 rule as a “power grab” that encroached on states’ rights to regulate pollution and manage water resources within their jurisdictions. Wheeler added that the repeal of WOTUS would allow the agency to write a new clean water rule that could be enforced in all 50 States.
The EPA’s decision to repeal WOTUS opened a floodgate of objections from hundreds of environmental groups across the country, including the Natural Resources Defense Council, Environmental Protection Network, and Environment America, among others. Environmental organizations have attacked the repeal as nothing more than a giveaway to business interests. Many believe the repeal will allow companies to pollute the nation’s waters at the expense of public health.
An April 15 letter to the EPA, signed by 155 environmental organizations, warned that the repeal of the WOTUS Rule would eliminate protections for more than 50 percent of U.S. wetlands, endangering U.S. drinking water supplies and increasing the risk of flooding in vulnerable areas. Blan Holman, a legal expert on water issues at the Southern Environmental Law Center, warned that the repeal would bring back the regulatory confusion that existed before the WOTUS Rule, making it once again more difficult to determine which bodies of water are subject to Federal protection and which are not.
The Trump Administration’s repeal of the 2015 Clean Water Rule will come into effect 60 days after its publication in the Federal Register. The official publication of the repeal is expected in the coming weeks. Because of the contentious nature of this debate, the repeal will face significant legal challenges in Federal district courts from environmental groups, States, and other stakeholders.
For more background, see the April 2016 issue of Congressional Digest on the “Clean Water Rule.”
