EPA, Army repeal four-year-old WOTUS rule

By |  September 12, 2019
Photo by Kevin Yanik

The joint EPA-U.S. Army announcement on the 2015 WOTUS rule is a step in the right direction for the aggregate industry. Photo by Kevin Yanik

The Environmental Protection Agency (EPA) and the U.S. Army jointly repealed a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.

EPA administrator Andrew Wheeler and Department of the Army assistant secretary of the Army for Civil Works R.D. James made the announcement at an event in Washington, D.C.

“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,” Wheeler says. “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, homebuilders and developers nationwide.”

James also weighed in on the action.

“This final rule reestablishes national consistency across the country by returning all jurisdictions to the longstanding regulatory framework that existed prior to the 2015 rule, which is more familiar to the agencies, states, tribes, local governments, regulated entities and the public while the agencies engage in a second rulemaking to revise the definition of ‘waters of the United States,’” James says.

According to EPA, the agencies are also 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.

With this final repeal, the agencies will implement the pre-2015 regulations, which 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.

In December 2018, EPA and the Army proposed a new definition that would clearly define where federal jurisdiction begins and ends in accordance with the Clean Water Act and Supreme Court precedent. In the proposal, the agencies provide a clear definition of the difference between federally regulated waterways and those waters that rightfully remain solely under state authority, EPA says.

Industry reaction

Headshot: Michael Johnson, NSSGA

Johnson

The National Stone, Sand & Gravel Association (NSSGA), for one, welcomed the EPA and U.S. Army development.

“EPA’s withdrawal is a necessary step,” says Michael Johnson, NSSGA president and CEO. “Our focus must remain on getting the WOTUS rule right to provide necessary protections while also providing aggregates producers the regulatory certainty in which to plan and operate their businesses. EPA’s proposed rule, issued in December 2018, provides many improvements over the flawed 2015 rule. NSSGA members have led on this issue and will continue to work with the administration and Congress to get the rule right in the end.”

Mark Williams of Luck Companies, who serves as NSSGA’s Environmental Committee chairman, was also pleased to see EPA take a positive step forward in withdrawing the 2015 WOTUS rule.

“The 2015 rule caused great confusion by controlling dry streambeds and manmade features far from flowing waters, making permitting aggregates operations more difficult, impacting vital infrastructure projects,” he says.

Kevin Yanik

About the Author:

Kevin Yanik is the editor-in-chief of Pit & Quarry magazine. Yanik can be reached at 216-706-3724 or kyanik@northcoastmedia.net.

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