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Obama-Era WOTUS Rule to Be Repealed: Here’s What to Know

Gabriella Hoffman
by Gabriella Hoffman Read Profile arrow_right_alt

The Trump Administration announced yesterday the 2015 “Waters of the United States (WOTUS)” rule, or Clean Water Rule, ushered in by the Obama Administration would be repealed. The contention was over what can be deemed “navigable waters” or not—including puddles and ditches on private property.

Back in December, EPA Administrator Wheeler and his agency announced their intention to rein in WOTUS. In a press release they announced what the new definition would be:

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.

Daily Caller’s Amber Athey explained:

The Clean Water Rule, more commonly referred to as the “Waters of the US” rule or WOTUS, was finalized by the Obama administration in 2015. The rule attempted to clarify which waters were subject to the regulations of the Clean Water Act, but in many cases ended up confusing land owners even further.

In a Des Moines Register op-ed, EPA Administrator Andrew Wheeler and Army Corps of Engineers’ RD James discussed why the WOTUS rule is being repealed:

Today, EPA and the Department of the Army will finalize a rule to repeal the previous administration’s overreach in the federal regulation of waters and wetlands. This action officially ends an egregious power grab and sets the stage for a new rule that will provide much-needed regulatory certainty for farmers, home builders, and property owners nationwide.

The Clean Water Act gives the federal government jurisdiction over “navigable waters,” which are defined as “waters of the United States” (WOTUS). Over time, the scope of jurisdiction has expanded from truly navigable waters and their major tributaries to eventually capture isolated ponds and channels that flow only after it rains. As the definition expanded, so too has Washington’s power over private property and the states’ traditional authority to regulate their land and water resources.

In 2015, the Obama administration put forward a WOTUS definition that expanded Washington’s influence over the landscape, including categorical jurisdiction over ephemeral tributaries and potential jurisdiction over isolated wetlands and ponds three-quarters of a mile from a remote tributary. The definition was so far-reaching that they needed to clarify in regulatory text that puddles were excluded.

The 2015 rule meant that more businesses and landowners across the U.S. would need to obtain a federal permit to exercise control over their own property, a process that can cost tens of thousands of dollars and take months or even years to complete.

The op-ed added the Clean Water Act isn’t going anywhere and that the duplicitous—and excessive—nature of WOTUS rules came at a detriment to existing law:

This patchwork of two different Clean Water Act jurisdictional regulations is unsustainable. There should be one standard that can advance economic development and environmental protection.

The proposal’s new, more precise definition would mean that farmers, land owners, and businesses will spend less time and money determining whether they need a federal permit and more time upgrading aging infrastructure, building homes, creating jobs, and growing crops to feed our families. We intend to finalize a new definition this winter so that spring comes with renewed hope for sensible federal regulation and partnership with our regulated community.

Last month, U.S. District Court for the Southern District of Georgia said the 2015 WOTUS rule was invalid. Reason has more:

On Wednesday, Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia concluded that the 2015 WOTUS rule was unlawful. Echoing a prior opinion from a federal district court in Texas, Judge Wood concluded that the 2015 WOTUS rule exceeded the agencies’ statutorily authorized jurisdiction and that the rule was also procedurally invalid under the Administrative Procedure Act because, among other things, the final rule was not a logical outgrowth of the proposed rule published in the Federal Register. A copy of Judge Wood’s 80-plus-page opinion is here.

The most egregious abuse of WOTUS rules was seen in the case of deceased Navy veteran Joe Robertson, who, under the former rules, was “convicted, fined, and imprisoned under the Clean Water Act for digging ponds to protect his Montana home from forest fires.” Daily Signal noted in July he was posthumously cleared of any wrongdoing.

Before suggesting Republicans and conservatives are against clean water standards, read the actual rule changes. Those standards aren’t going anywhere. Instead, it’ll rein in existing law and rely on one standard for the Clean Water Act.

Conservatives aren’t opposed to basic laws ensuring standards for clean water. That should not be the takeaway from this news. Most Americans believe Obama’s EPA put people and environmental interests at odds with one another. This rule appears to have rid of duplicity and bureaucratic overreach that penalizes land owners when it comes to maintaining bodies of water on their property.

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