Environment & Energy Report

EPA Targets ‘Patchwork’ of Regulation in Waters Rule Repeal

Sept. 12, 2019, 7:51 PM

EPA Administrator Andrew Wheeler said the Trump administration is repealing a landmark Obama-era waters regulation to bring regulatory certainty to businesses, but a new version of the rule isn’t expected for months.

The Environmental Protection Agency announced on Sept. 12 it has finalized a measure (RIN: 2040-AF74) that takes the rule known as Waters of the United States, or WOTUS, off the books. The rule set the criteria the federal government uses to determine whether a body of water is covered by anti-pollution protections.

Due to conflicting court rulings in recent years, this rule was in place in roughly half the country while an older criteria developed in the 1980s was in effect in the other half.

“This patchwork of two different Clean Water Act regulations is unsustainable,” Wheeler said at a ceremony marking the signing of the repeal. “It inhibits projects that are critical for economic development and environmental regulation.”


Once this repeal takes effect 60 days after it’s published in the Federal Register, regulators will use the earlier 1980s definition of “waters.”

However, this earlier rule is on questionable legal ground, after the Supreme Court called it inadequate several times. To address this, the Trump administration is preparing its own version of the Obama administration’s WOTUS rule (RIN: 2040-AF75).

But Wheeler said this replacement would not be ready to go final until “this winter.”

In the interim, he said the law of the land will return to how it was before the Obama administration’s WOTUS rule took effect—essentially the 1980s version of the rule, modified by several guidance documents issued over the years to comply with Supreme Court rulings.

Farmers Happy

Business groups, especially farmers, strongly opposed the Obama-era WOTUS rule. They feared its broad definition of a water body would lead to federal oversight of small creeks and drainage ditches that were previously unregulated.

“It was impossible for our farmers to know what they could do, and what they were and weren’t supposed to do,” Zippy Duvall, president of the American Farm Bureau Federation, said at the signing ceremony.

Duvall added that he brought up the WOTUS rule in his first conversation with President Donald Trump after his inauguration in January 2017.

“We have never seen a sense of urgency on any issue beyond what this has generated,” Duvall said. “We’ve never had engagement from our grassroots like we have on this issue.”

Environmentalists Not

Environmentalists, who largely supported the Obama administration’s rule, are planning a challenge.

The Trump administration “is repealing these important protections without regard for the law or sound science,” Jon Devine, head of federal water policy at the Natural Resources Defense Council, said in a statement. “This unsubstantiated action is illegal and will certainly be challenged in court.”

And, much like many Republican-led states filed suits challenging the 2015 rule, Democratic-led states appear to be getting ready to do the same against the Trump administration’s repeal.

“While we don’t go looking for a fight, there’s too much at stake for us to let this go,” Xavier Becerra, California’s attorney general, said in a statement. “We’re prepared to defend the Clean Water Rule.”

To contact the reporter on this story: David Schultz in Washington at dschultz@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Renee Schoof at rschoof@bloombergenvironment.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com

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