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EPA to redefine contentious WOTUS rule
Kirill Abbakumov   on Wednesday, July 12, 2017 at 12:00:00 am

In late June 2017, the Trump administration announced that they will repeal the Waters of the United States (WOTUS) rule. The Environmental Protection Agency (EPA), Department of the Army and U.S. Army Corps of Engineers are proposing a new rule that would rescind the Obama administration’s WOTUS rule and re-codify the regulatory text that existed before its adoption in 2015. The agencies claim that these actions would provide certainty in the interim while a new rule-making process is undertaken.

Property developers, chemical manufacturers and oil-and-gas producers have voiced opposition to the rule, which they argue is an intrusion on property owners’ rights and an impediment to economic growth. The rule expanded the definition of federally-regulated waters so broadly that ditches, canals, collection ponds, and isolated wetlands far from “navigable waters” were covered. In order to build or make modifications on their land, farmers, ranchers, and businesses would need to hire consultants and lawyers to get costly federal permits. In late February, President Trump signed an executive order directing the EPA to review WOTUS and to do so based on a much narrower interpretation of “navigable waters” as outlined in a 2006 Supreme Court opinion.

EPA Administrator Scott Pruitt stated that "EPA is taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses.” According to him, the re-codification "is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies. The agencies have also begun deliberations and outreach on the second step rulemaking involving a re-evaluation and revision of the definition of "waters of the United States" in accordance with the Executive Order.