Trump Administration Rescinds WOTUS Rule

Foley & Lardner LLP

Earlier this week, the Trump administration added another Obama-era regulation to its list of policy rollbacks. On Tuesday, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced a proposal to strike the 2015 “Waters of the United States” (WOTUS) regulation, which had expanded the number of U.S. waterways subject to federal review for pollution control purposes.

Before the 2015 WOTUS regulation, the 1972 Clean Water Act applied primarily to “navigable” bodies of water. With the 2015 WOTUS rulemaking, the Obama administration expanded the permitting requirements of the Clean Water Act to ditches, streams, and many additional non-navigable waters, outside the original scope of the Clean Water Act.

In testimony before the Senate Appropriations Subcommittee on the Department of the Interior, Environment, and Related Agencies, EPA Administrator Scott Pruitt announced the EPA would eliminate the 2015 WOTUS definition and revert, for the time being, to 2008 EPA guidance. Pruitt announced in his prepared testimony before the Committee that the initial repeal of WOTUS would be the first step in a two-part process to redefine which waters of the United States would be subject to the Clean Water Act. Pruitt stated his agency would follow on with a revised, likely narrowed definition of WOTUS in a forthcoming rulemaking.

The proposal follows on a February Executive Order (EO# 13778) in which President Trump asked the EPA and Corps to review the WOTUS rule and, in particular, the definition of the term “navigable waters.”

The Obama administration’s WOTUS rulemaking attracted sustained criticism from the agricultural community, landowners, and developers concerned with lengthy federal Clean Water Act permitting requirements for the use of private land. Environmentalists generally supported the WOTUS rule on public health and conservation grounds, arguing that the rule enhanced federal protections for upstream tributaries.

Repealing the Obama administration’s WOTUS rule ensures that the debate over the scope of federal water regulations will continue for years to come. Over one million individual comments were received by the Obama administration in developing the regulation. A formal notice and comment rulemaking is required for the Trump administration to revise the definition of waters of the United States. This process is certain to engender the same level of debate.

Interested parties may comment on the proposed rule, currently in pre-publication form, upon publication in the Federal Register. This post will be updated with a link to the proposed rule when published.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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