EPA Region 2 Administrator Announces Water Rule Rollback

Sep 12, 2019

The U.S. Environmental Protection Agency is rolling back a 2015 rule governing which water bodies are subject to federal regulation.

The EPA has announced that it, together with the Department of the Army, is repealing a 2015 rule put in place under President Obama that expanded the definition of “waters of the United States” under the federal Clean Water Act.

The rollback announced Thursday was long anticipated as the rule has been the target of industry lobbying.  President Trump issued an executive order on the so-called “WOTUS” definition soon after taking office in 2017.

Regional EPA Administrators across the country provided details on the change Thursday. Region 2 Administrator Pete Lopez discussed the news in Albany.

Lopez said he believes the 2015 rule was an “inappropriate expansion of the waters’ definition.”

“And so the revised rule that we’re addressing aims to be more clear and easier to understand, help landowners, farmers, business owners, to understand whether they require federal permits before undergoing new projects. So this will save them both time and money,” said Lopez.

Lopez gave an example of how the change might affect the siting of a project on a waterbody, characterizing the change as the federal government determining where its involvement begins and ends. 

“Instead of Army Corps maybe being involved along with a DEC official in reviewing and permitting of an action on a waterbody, it may just be DEC. In some cases it would remain both. So this is just clarifying and reinforcing where we begin and end, and doing no harm to where states choose to impose their will,” said Lopez.

Joining Lopez was Paul Molesky, representing the New York Farm Bureau, which formally welcomed the rollback. Molesky also chairs the National Farm Bureau Young Farmers and Ranchers Committee.

“As farmers in New York, we’re subject to the regulations of New York, which are oftentimes more stringent than the federal level. And by adding another layer, it just adds more ambiguity and uncertainty that farmers have to deal with and makes it difficult for farmers to do their job,” said Molesky.

Also heralding the change was Ken Pokalsky, Vice President of the Business Council of New York State.

“We work with our national partners, the U.S. Chamber of Commerce and the National Association of Manufacturers. And working with them, we know this rule, since its adoption in 2015, has resulted in a hodge-podge of applicability across the U.S.,” said Pokalsky.

But environmental advocates are blasting the change, saying it removes protections for water supplies including wetlands and seasonal streams.

Liz Moran, Environmental Policy Director at the New York Public Interest Research Group, said the rollback is a giveaway to large companies and the oil and gas industry.

“This will make it far easier for them to completely pollute and drain out critical wetlands. This rollback is coming at a time where our waterways are increasingly threatened by chemical contamination and harmful algal blooms. So we are at a point where we need more water protections, not fewer,” said Moran.

The Natural Resources Defense Council released a statement Thursday saying the change is illegal and that it will be challenged in court.

Mentioning the recently filed lawsuit from New York State over the EPA’s issuance of a Certificate of Completion for the Remedial Action for PCB removal in the Hudson River, Lopez called the threat of a lawsuit from the NRDC “constructive tension.”

“We have a public comment period, we’re going through testimony now, we’re looking at differences of opinion. We haven’t finalized the second step, here. And, again, the dialogue is open. If they choose to sue, that’s, again, that’s within their purview,” said Lopez.

EPA Administrator Andrew Wheeler said in a statement that the agency will work on Step 2 to develop “a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”