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Waters Rule Delay May Be Unintentional Gift to Environmentalists

Oct. 17, 2018, 7:37 PM

The EPA’s four-month delay in repealing a landmark Obama-era water regulation could unintentionally help the agency’s opponents, an environmental attorney working on the issue said.

Environmental groups are defending the Obama administration’s efforts to define which waters are subject to Clean Water Act protections as the current Environmental Protection Agency looks to roll them back.

The additional time the Trump EPA needs to repeal the regulation, known as the Waters of the United States rule, or WOTUS, gives environmental advocates another chance to show that the rule isn’t as harmful as opponents claim, Geoff Gisler, a lawyer with the Southern Environmental Law Center, told Bloombeg Environment.

Businesses, and especially the agriculture industry, strongly opposed the Obama rule because they were concerned it would bring small, ephemeral streams under the purview of federal pollution regulators.

When the Trump administration took office, it made repealing the rule one of its top priorities. However, nearly two years later, its repeal proposal (RIN:2040-AF74) is still stuck in the federal rulemaking process. The White House’s Office of Management and Budget announced Oct. 17 that the WOTUS repeal won’t be complete until March 2019, rather than next month as originally planned.

Confusion on the Farm

Ellen Steen, the American Farm Bureau Federation’s general counsel, wants the EPA to use this extra time to get the repeal process right and bulletproof it from legal challenges that will certainly ensue.

However, Steen said the delay has tangible consequences for many farmers and other land owners because the 2015 rule is currently in effect in roughly two dozen states. The Trump administration had tried to postpone the compliance deadlines for the 2015 rule, but a court partially struck that down earlier this year.

“There’s a tremendous amount of risk, to be honest,” Steen told Bloomberg Environment. “If I’m a farmer in one of those states and I have a crop to plant, I have to be planting and making decisions. Planting requires moving dirt. That could be an unlawful activity.”

Who Will Act First?

Steen also said, given this latest delay, it’s possible the federal courts hearing challenges to the 2015 WOTUS rule will act to overturn it before the EPA’s repeal is actually complete next year.

Gisler disagreed, saying the agency’s efforts to repeal the rule are actually in danger of being struck down in court. He and Steen agree that this latest delay by the EPA does nothing to clarify what was already one of the most confusing areas of water law.

For its part, the EPA acknowledged that the court decision from earlier this year means WOTUS is in effect in some states but not others. Agency spokeswoman Tricia Lynn said the EPA is working with the Army Corps of Engineers, which also handles water jurisdiction issues, to answer questions on a “case-by-case basis” about whether a body of water is covered by federal law.

“The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis about which rules are in place in which states,” Lynn told Bloomberg Environment via email.

To contact the reporter on this story: David Schultz in Washington at

To contact the editor responsible for this story: Greg Henderson at