Obama Waters Rule Will Be Kaput After Yearslong Repeal Effort

The Trump administration is set to complete its long-in-the-works repeal of the Obama-era Waters of the United States rule.

The administration plans to announce the first step in its repeal of the rule in the afternoon of Sept. 12, Matthew Leopold, general counsel for the Environmental Protection Agency, said the same day at a conference in Boston.

The rule, known as WOTUS, defines which waterways are protected under the federal Clean Water Act. The Obama Administration updated the WOTUS rule in 2015 and allowed it to be more broadly applied, to smaller streams.

Today, 22 states follow the 2015 update to the water rule, 27 states still follow the original 1986 rule, and New Mexico’s interpretation of WOTUS is “in flux,” Leopold said.

Reinterpreting Rule

A repeal of the WOTUS is necessary for a number of reasons, including to bring all states under one rule, Leopold said.

“We’re within the limits of what Congress delegated to us,” when it passed the Clean Water Act in 1972, Leopold said. “We’re happy to be filing it.”

The changes will take effect in 60 days, Leopold said. The administration will announce the second step in repealing the rule next year, Leopold said.

Many business sectors, especially those in the agriculture industry, opposed the Obama administration’s 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.

Some filed lawsuits that eventually led to judges overturning the waters rule in more than two dozen states. The Trump administration’s latest action effectively overturns the rule nationwide.

Leopold said the administration expected lawsuits to be filed opposing the rule change.

“We will defend [the repeal] wherever properly challenged,” Jeffrey Bossert Clark, assistant attorney general at the U.S. Justice Department for Environment and Natural Resources, said at the same American Bar Association meeting in Boston.

Exemptions on Hold?

Repealing and replacing the WOTUS rule was one of the promises that President Donald Trump made during his 2016 campaign. Just weeks after taking office, he ordered the Environmental Protection Agency and the U.S. Army Corps of Engineers to do just that under a 2017 executive order.

But more than two years after that order, the Trump administration has achieved only half its campaign promise.

Although the WOTUS rule is now repealed, the administration wasn’t previously expected to finalize its replacement until December (RIN:2040-AF75). A draft version of this WOTUS replacement would exempt many isolated wetlands and ephemeral streams from federal regulation.