WOTUS Repealed, Will Get ‘Redefined,’ EPA Says

02:38PM Sep 12, 2019
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Waters of the U.S. had been broadly defined by the Obama administration.
( Amy Millmier Schmidt, University of Nebraska-Lincoln )

On Thursday, a 2015 rule that expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act was formally revoked.

“Let’s just call it what it was, an example of the worst kind of regulatory overreach,” said U.S. Sen. Josh Hawley (R-Mo.), of the Obama-era WOTUS rule, during the announcement.

“Repealing the rule is a major win for American agriculture,” noted U.S. Secretary of Agriculture Sonny Perdue, in remarks he made at the presentation. “Farmers and ranchers are exceptional stewards of the land, taking great care to preserve it for generations to come. President Trump is making good on his promise to reduce burdensome regulations to free our producers,” he added.

The formal announcement repealing WOTUS was made jointly by U.S. Environmental Protection Agency (EPA) Administrator, Andrew Wheeler, and Assistant Secretary of the Army for Civil Works, R.D. James, in Washington, D.C. and broadcast live via Facebook.

Wheeler said there will be a two-step rulemaking process to redefine the scope of WOTUS.

“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,” he noted.

According to an EPA news release, the two federal district courts that have reviewed the merits of the 2015 rule found that the rule suffered from certain errors and issued orders remanding the 2015 rule back to the agencies. Multiple other federal district courts have preliminarily enjoined the 2015 rule, citing its failures.

According to the EPA news release, the 2015 rule:
•    Did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act as intended by Congress and reflected in Supreme Court cases.
•    Failed to adequately recognize, preserve, and protect the primary responsibilities and rights of states to manage their own land and water resources.
•    Approached the limits of the agencies’ constitutional and statutory authority absent a clear statement from Congress.
•    Suffered from certain procedural errors and a lack of adequate record support as it relates to the 2015 Rule’s distance-based limitations.

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 news release stated.

The final rule takes effect 60 days after publication in the Federal Register.

 

WOTUS Update 091319